The purpose of this chapter is to provide for the regulation of coal combustion byproducts, and to establish certain requirements pertaining to the generation, storage, handling, processing, disposal, recycling, beneficial use, or other use of coal combustion byproducts, including the use of coal combustion byproducts in coal and noncoal mining operations. Except as otherwise specifically provided, this chapter applies to persons engaged in the generation, storage, handling, processing, disposal, recycling, beneficial use, or other use of coal combustion byproducts. Compliance with the provisions of this chapter does not relieve a person from the duty to comply with any other applicable federal, State, and local laws, regulations, and ordinances. In this chapter, the following terms have the meanings indicated. Terms Defined. “Air pollution” has the meaning stated in Environment Article, §2-101(b), Annotated Code of Maryland. Beneficial Use. “Beneficial use” means the use of coal combustion byproducts in a manufacturing process to make a product, or as a substitute for a raw material or commercial product, which, in either case, does not create an unreasonable risk to public health or the environment as determined by the Department. “Beneficial use” does not include the use of coal combustion byproducts in a mining operation or in mine reclamation activities. Coal Combustion Byproducts. “Coal combustion byproducts” means the residue generated by or resulting from the burning of coal. “Coal combustion byproducts” includes fly ash, bottom ash, boiler slag, pozzolan, and other solid residuals removed by air pollution control devices from the flue gas and combustion chambers of coal burning furnaces and boilers, including flue gas desulfurization sludge and other solid residuals recovered from flue gas by wet or dry methods. “Coal combustion byproducts disposal facility” means a facility or site where coal combustion byproducts are or will be disposed of, and includes the entirety of any lot or parcel and all contiguous land and structures, other appurtenances, and improvements on the land, which are owned, leased, or used by, or under the control of, the owner or operator. “Department” means the Department of the Environment. “Discharge” has the meaning stated in Environment Article, §9-101, Annotated Code of Maryland. “Disposal” means the discarding or abandonment of coal combustion byproducts so that they are not recycled or used, as determined by the Department. “Dispose” means any action that results in a disposal. Generator. “Generator” means a person whose operations, activities, processes, or actions create coal combustion byproducts. “Generator” does not include a person who only generates coal combustion byproducts by burning coal at a private residence. “Leachate” means liquid that: Has percolated through, has drained from, or has been generated by coal combustion byproducts; and Has extracted dissolved material, miscible material, suspended material, or all of these from the coal combustion byproducts. “Open dump” means a land disposal site which: Is not designed or operated in accordance with the requirements for a sanitary landfill under COMAR 26.04.07; or Is in violation of the Resource Conservation and Recovery Act, §4005, and 40 CFR §257. “Open dumping” means any action that results in the creation of an open dump. “Operator” means a person responsible for the overall operation of a facility, site, or storage system. “Owner” means a person who owns all or part of a facility, site, or storage system. “Person” means an individual, corporation, company, association, society, firm, partnership, joint venture, joint stock company, or other entity, or a federal, State, or local government or governmental unit, or any political subdivision of this State or any of its agencies or instrumentalities. “Pozzolan” has the meaning stated in Environment Article, §15-407, Annotated Code of Maryland. “Sludge” means any solid, semi-solid, or liquid waste generated by a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility, including sewage sludge but exclusive of the treated effluent from a wastewater treatment plant. “Solid waste” means any garbage, refuse, sludge, or liquid from industrial, commercial, mining, or agricultural operations or from community activities, including coal combustion byproducts that are not recycled or used, as determined by the Department. “Solid waste acceptance facility” has the meaning stated in COMAR 26.04.07.02. “State” means the State of Maryland. “Storage system” means a storage tank, silo, bunker, impoundment, or other containment structure used for the storage of coal combustion byproducts before their disposal, use, or transport. “Surface impoundment” has the meaning stated in COMAR 26.10.02.04. “Waters of this State” has the meaning stated in Environment Article, §9-101, Annotated Code of Maryland. General Restrictions. A person may not engage in the generation, storage, handling, processing, disposal, recycling, beneficial use, or other use of coal combustion byproducts in a manner that is likely to: Create a nuisance; Create air pollution; Cause a discharge of pollutants to waters of this State except in accordance with a valid permit issued by the Department under Environment Article, §9-323, Annotated Code of Maryland; Cause a violation of a ground water quality standard described in COMAR 26.08.02.09C; Impair the quality of the environment; or Create other hazards to the public health, safety, welfare, or comfort as may be determined by the Department. Specific Prohibited Acts. Operating an Open Dump. Except as provided in Regulation .04E of this chapter, a person may not: Dispose of coal combustion byproducts in an open dump; or Cause, suffer, allow, or permit open dumping of coal combustion byproducts on the person's property. Accepting Controlled Hazardous Substances. A person may not accept a material that meets the definition of hazardous waste under COMAR 26.13.02 at a coal combustion byproducts disposal facility unless the facility is in compliance with the permit requirements of COMAR 26.13.07.01. Air Pollution. A person may not engage in the disposal, storage, transportation, processing, handling, or use of coal combustion byproducts without taking reasonable precautions to prevent particulate matter from becoming airborne. These reasonable precautions shall include, when appropriate as determined by the Department, those precautions described in COMAR 26.11.06.03C and D. Transportation. In addition to the requirements of §B(3) of this regulation, a person may not transport coal combustion byproducts without taking reasonable precautions to control fugitive air emissions relating to the transportation. These reasonable precautions shall include, at a minimum, the following: Vehicles transporting coal combustion byproducts shall be fully enclosed, or fully enclosed on all sides and covered with a firmly secured canvas or other covering, so as to prevent any coal combustion byproducts from blowing off, falling off, or spilling out of the vehicle, or the coal combustion byproducts shall be handled and transported in sealed containers designed for transportation of powdery solids; Before leaving a site where coal combustion byproducts are loaded or off-loaded, vehicles transporting coal combustion byproducts shall be rendered clean and free of excess material or debris that could blow off, fall off, or spill during transportation; Coal combustion byproducts being loaded into or off-loaded from a vehicle shall be sufficiently moistened or otherwise conditioned or contained to prevent particulate coal combustion byproducts from becoming airborne or causing fugitive air emissions; Following loading but prior to any transportation of coal combustion byproducts, the transporter shall inspect each vehicle that contains coal combustion byproducts to ensure that the requirements of §B(4) of this regulation are met; A transporter of coal combustion byproducts shall maintain an inspection log for each vehicle that shall be maintained in the vehicle at all times during transport of coal combustion byproducts, and for 30 days thereafter that shall certify compliance with the standards in §B(4) of this regulation; and An inspection log maintained by a transporter of coal combustion byproducts shall consist of an entry for each inspection of a vehicle that has been conducted by the transporter. An inspection entry shall consist of the following information: The date the inspection occurred; The time of day the inspection occurred; The name of the person conducting the inspection; The condition of the vehicle and any corrective action required to ensure compliance with this subsection, for example, “truck cleaned and covered” for a vehicle that meets the requirements, or “cover OK, right side wheels hosed off again” for a vehicle that was properly covered but which required re-cleaning of wheels on the right side; and The signature of the individual certifying compliance with §B(4) of this regulation. Disposal. A person may not dispose of coal combustion byproducts except in accordance with the provisions of this regulation. A person shall dispose of coal combustion byproducts only in a coal combustion byproducts disposal facility or a solid waste acceptance facility that has been authorized by the Department for the disposal of coal combustion byproducts. On or after December 1, 2008, before a new coal combustion byproducts disposal facility may be constructed, a person shall apply for a permit for an industrial waste landfill under Environment Article, §9-204, Annotated Code of Maryland, and comply with the requirements for industrial waste landfills in COMAR 26.04.07 to the satisfaction of the Department, including but not limited to: The general requirements in COMAR 26.04.07.19; The permit requirements in COMAR 26.04.07.20; The closure requirements in COMAR 26.04.07.21; The post-closure monitoring and maintenance requirements in COMAR 26.04.07.22; and Any other requirements the Department considers necessary to protect public health and the environment or to prevent nuisance conditions. A new coal combustion byproducts disposal facility may not be constructed or operated on or after December 1, 2008 unless a permit for an industrial waste landfill has been issued by the Department authorizing the facility. A coal combustion byproducts disposal facility that the Department has authorized for the disposal of coal combustion byproducts before December 1, 2008, may continue to operate under the Department's authorization, except that the Department reserves the right to modify an existing authorization to require additional controls or requirements as it considers necessary to protect public health and the environment or to prevent nuisance conditions. An existing coal combustion byproducts disposal facility that intends or proposes to expand beyond its current authorization or operations shall notify the Department in writing. The Department may impose additional controls or requirements on the expansion of the facility as it considers necessary to protect public health and the environment or to prevent nuisance conditions, including, but not limited to, a requirement that the proposed expansion obtain a refuse disposal permit for a new industrial waste landfill or other solid waste acceptance facility as the Department considers appropriate, in accordance with applicable regulations. A person may not store coal combustion byproducts except in accordance with the provisions of this regulation. A person may not store coal combustion byproducts directly on the surface of the ground or in an unlined surface impoundment, pit, pond, or lagoon without the authorization of the Department. A person shall store coal combustion byproducts in a manner that prevents contact with waters of this State and that is designed either to minimize contact with precipitation or to collect leachate that may result from contact with precipitation. A person may not use a storage system for coal combustion byproducts unless the storage system is: Designed, constructed, and installed to contain coal combustion byproducts and contaminants in the coal combustion byproducts and prevent them from being released to the environment; and Provided with a roof or other protections to prevent nuisance, air pollution, and unlawful discharges of contaminated stormwater or leachate to the waters of this State. A person may not store coal combustion byproducts in an area likely to pollute the waters of this State. Responsibility for the prompt control, containment, and removal of any released coal combustion byproducts or for placing coal combustion byproducts in a position likely to pollute the waters of this State shall be with the person responsible for the release, and with the owner and operator of the facility, site, or storage system where the release occurred. This responsibility shall continue until removal or clean up of any contamination or pollution from the release has been accomplished to the satisfaction of the Department. The Department may impose specific requirements for the storage of coal combustion byproducts upon a determination that storage of coal combustion byproducts has caused or is likely to cause a discharge to the waters of the State, is a nuisance, or otherwise poses a threat to public health or the environment. The owner and operator of a facility, site, or storage system shall ensure that: A release of coal combustion byproducts during storage operations due to spilling or overflowing does not occur; Adequate storage space is available to handle the volume of coal combustion byproducts generated and to be stored; and Transfer, handling, and storage operations are performed in a manner that shall prevent, contain, and clean up spills of coal combustion byproducts. A person may not use coal combustion byproducts in a mine reclamation activity or other mining operation, except in accordance with this chapter and §B or C of this regulation. Active and Abandoned Coal Mines. Coal combustion byproducts may be used in a surface coal mining and reclamation operation and in an abandoned coal mine only in accordance with the provisions of COMAR 26.20, including but not limited to COMAR 26.20.24.08. Noncoal Surface Mines. Coal combustion byproducts may be used in the reclamation of a noncoal surface mine only in accordance with COMAR 26.21.04. A person may apply to the Department for a variance from one or more of the provisions of this chapter. The Department may grant a variance if the basis for the variance application is demonstrated to the satisfaction of the Department to: Provide equal or greater protection to prevent a release or discharge of coal combustion byproducts to the environment as would be provided by compliance with the regulation for which a variance is requested; Conserve and protect the public health, the natural resources, and the environment of the State; and Control pollution to at least the same extent as would be obtained by compliance with the regulation for which a variance is requested. A person applying for a variance shall supply the information required by the Department, including: The nature and location of the site or sites at which the coal combustion byproducts will be generated, stored, handled, processed, recycled, disposed of, or used; The reasons why the applicant requires the variance, including the technological and environmental justification; and Other relevant information the Department may require in order to make a determination regarding the application for a variance. When practicable, within 60 days of receipt of a complete application for a variance request as determined by the Department, the Department shall make a determination to either grant or deny the variance. If the request for a variance is denied, the Department shall inform the applicant in writing of the basis of the denial. A generator of coal combustion byproducts shall maintain records of, and deliver to the Department by March 1 of each year an annual report that contains, the following: The name, address, and telephone number of the generator of any coal combustion byproducts; A description of the process that generates the coal combustion byproducts, including the type of coal or other raw material that generates the coal combustion byproducts; The annual volume of coal combustion byproducts generated during the last 5 calendar years, including an identification of the different types of coal combustion byproducts generated and the volume of each type generated, except that after a generator has submitted its first annual report, which shall report the information in this subsection for the last 5 calendar years, subsequent annual reports need only provide the information in this subsection for the last calendar year; Descriptions of any modeling or risk assessments, or both, conducted relating to the coal combustion byproducts or their use; All laboratory reports of all chemical characterizations of the coal combustion byproducts; Except as provided in §G of this regulation, a description of how the generator disposed of or used its coal combustion byproducts in the last 5 calendar years, identifying: The types and volume of coal combustion byproducts disposed of or used, the location of disposal, mine reclamation and use sites, and the type and volume of coal combustion byproducts disposed of or used at each site; and The different uses by type and volume of coal combustion byproducts; A description of how the generator intends to dispose of or use its coal combustion byproducts in the next 5 years, identifying: The types and volume of coal combustion byproducts intended to be disposed of or used, the location of intended disposal, mine reclamation and use sites, and the type and volume of coal combustion byproducts intended to be disposed of or used at each site; and The different intended uses by type and volume of coal combustion byproducts. An authorized official of the generator shall sign the annual report provided under §A of this regulation and certify as to the accuracy and completeness of the information contained in the annual report. A generator shall maintain records of the names, addresses, and telephone numbers of the persons to whom the generator sold, transferred, or provided coal combustion byproducts for disposal, storage, use, or recycling; the type and volume of coal combustion byproducts provided to each person; and, if known, how each person disposed of, used, or recycled the coal combustion byproducts. The generator shall maintain all records required by §§A and C of this regulation for a minimum of 5 years and shall make the records available to the Department upon request. If changes in the raw materials or processes used by a generator result in the identification of new chemical constituents in the coal combustion byproducts, the generator shall submit a report to the Department, identifying the new chemical constituents and the change in raw materials or processes that resulted in the creation of the new chemical constituents. Except as otherwise provided by law, the Department may publish on its website or elsewhere, or otherwise make available to the public, any information that it gathers from the annual reports or records provided under this regulation. After a generator has submitted its first annual report, which shall report the information in §A(6) of this regulation for the last 5 calendar years, subsequent annual reports need only provide the information in §A(6) of this regulation for the last calendar year. This regulation applies to generators of coal combustion byproducts. Annual Generator's Fee. Except as provided in §D(5) of this regulation, a generator of coal combustion byproducts shall pay the Department an annual generator's fee. The annual generator's fee shall be determined by the Department on the basis of the total tons of coal combustion byproducts generated by a generator. Fee Payment. The Department shall submit a notice to a generator specifying the annual generator's fee that is due. A generator shall pay the annual generator's fee to the Department within 30 days of the date of the notice sent to a generator by the Department. If a generator fails to pay the annual generator's fee, the Department may deny or act to stop any current or future use, beneficial use, or disposal of coal combustion byproducts generated by the delinquent generator. The Department may take other appropriate action to collect fees and money owed under this regulation from delinquent generators. Annual Generator Fee Schedule. Base Fee. The initial base fee shall be $1.15 for each ton of coal combustion byproducts generated. The base fee may be adjusted by the Department on an annual basis as provided in Environment Article, §§9-283 and 9-284, Annotated Code of Maryland, for the next applicable fiscal year. Base Fee Adjustment Factors. The base fee shall be adjusted depending on how the coal combustion byproducts are managed based on the appropriate adjustment factor in Table 1: Calculation of Fee. The annual generator's fee shall be calculated by adding the results of the following formula for each Management Category in Table 1: Adjustment of Fees. Billing of the annual generator's fee shall be based on the generation of coal combustion byproducts by a generator that occurs on a calendar year schedule beginning on January 1 of each year, and be based on the annual report of a generator for the previous calendar year as required under Regulation .08 of this chapter. Expenditures by the Department shall be calculated on a fiscal year basis, beginning on July 1 and ending on June 30 of the next calendar year. Whenever the combination of unallocated funds remaining in the Coal Combustion Byproducts Management Fund and the projected revenue from the annual generator's fee exceed anticipated expenditures, the annual generator's base fee shall be adjusted so that the combination of unallocated funds and revenue from the annual generator's fee does not exceed the Department's anticipated expenditures. Unallocated funds shall include all funds that are expected to be available for carryover into the next fiscal year after payment of all budgeted items and other anticipated expenses. Exemptions. A generator may not be required to pay the annual generator's fee for the following: Coal combustion byproducts that are generated by a generator generating less than 10,000 tons of coal combustion byproducts per calendar year; Coal combustion byproducts that are used in accordance with applicable regulations in a surface coal mining and reclamation operation, in a deep mine, or in an abandoned coal mine; and Coal combustion byproducts that are used beneficially in the State. The Department shall determine which uses reported by a generator are beneficial uses for the purpose of calculating the annual generator's fee. The Department may request supplemental information from a generator concerning a claimed use of coal combustion byproducts to determine whether a specific claimed use should or should not be exempt from the annual generator's fee, and may investigate and make case-specific determinations concerning beneficial uses and other claimed uses at any time. The Department may inspect and audit all records or files associated with the annual reports required under Regulation .08 of this chapter, and the calculation and payment of the annual generator's fee required under Regulation .09 of this chapter. A generator shall maintain all records associated with the payment of the annual generator's fee for at least 3 years after payment. If an audit reveals any amount of money was improperly withheld from the Department: A generator shall remit that amount to the Department within 30 days of notification of the error by the Department; A generator shall be liable for any expenses incurred by the Department in collecting money owed to the Department; and A generator may be subject to other penalties as provided by law or regulation. Environment Article, §§1-404, 2-301, 9-252, 9-281—9-286, 9-289, 9-302, 9-313, 9-314, 15-503, 15-702, and 15-803, Annotated Code of Maryland; Ch. 480, Acts of 2009 Effective date: December 1, 2008 (35:24 Md. R. 2080) Regulation .03B amended effective October 18, 2010 (37:21 Md. R. 1437) Regulation .09 adopted as an emergency provision effective September 10, 2009 (36:21 Md. R. 1588); adopted permanently effective March 8, 2010 (37:5 Md. R 428) Regulation .10 adopted as an emergency provision effective September 10, 2009 (36:21 Md. R. 1588); adopted permanently effective March 8, 2010 (37:5 Md. R 428)