The Hazardous Substance Response Plan is promulgated pursuant to and shall be read in conjunction with the Environment Article, Annotated Code of Maryland, and the Code of Maryland Regulations (COMAR). The Hazardous Substance Response Plan does not create a right to State response or enforcement action for any private party, nor does the Hazardous Substance Response Plan create any duty of the State to take any response action at any particular time. State actions in implementing the Hazardous Substance Response Plan are discretionary governmental functions. The Department need not follow or implement any provisions of this Hazardous Substance Response Plan if funds are not appropriated or otherwise are not available. The Hazardous Substance Response Plan may be used as guidance concerning methods and criteria for response actions by other parties under other funding mechanisms. The Hazardous Substance Response plan does not establish any preconditions to enforcement action by the State to compel response actions by potentially responsible persons. The Hazardous Substance Response Plan is not intended to create any rights to contested case hearings. In this chapter, the following terms have the meanings indicated. Terms Defined. “County” means Baltimore City and any county within the State. “Department” means the Maryland Department of the Environment (MDE). “Federal act” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986. “Ground water” means water below the land surface in a zone of saturation. “Hazardous substance” means any substance: Defined as a hazardous substance under the federal act; or Identified as a controlled hazardous substance by the Department in the Code of Maryland Regulations. “National Contingency Plan (NCP)” means the National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR 300. “Oil” means oil as defined in Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland. “Person” means an individual, trust, firm, joint stock company, federal agency, corporation including a government corporation, partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body. “Release” means the addition, introduction, leaking, spilling, emitting, discharge as defined in Environment Article, Titles 4 and 7, escaping, or leaching of any hazardous substance or oil into the environment. “Remedy” or “remedial action” means those actions consistent with a permanent remedy taken instead of, or in addition to, removal action in the event of a release or threatened release of a hazardous substance or oil into the environment, to prevent or minimize the release of hazardous substances so that the substances do not migrate to cause substantial danger to present or future public health, welfare, or the environment. This term includes, but is not limited to, the remedies described in the federal act. “Removal” or “remove” means the cleanup or removal of released hazardous substances or oil from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances or oil into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances or oil, the disposal of removed material, or the taking of other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The terms include, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, containment of hazardous substances or oil, and other appropriate actions in response to emergencies. “Response” or “respond” means remove, removal, remedy, and remedial action. All these terms, including the terms “removal” and “remedial action”, include any related enforcement activities. “Responsible person” means a responsible person as defined in Environment Article, Title 7, Subtitle 2, or a person responsible for the discharge as defined in Environment Article, Title 4, Subtitle 4, Annotated Code of Maryland. “Secretary” means the Secretary of the Environment. “Site” means: A building, structure, installation, equipment, pipe or pipeline including any pipe into a sewer or publicly owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft; or An area where a hazardous substance or oil has been deposited, stored, disposed of, or placed, or has otherwise come to be located. For Federal National Priorities List sites at which the Department is the lead agency, the Department shall comply with the provisions for public information and community relations set forth in the National Contingency Plan. For sites listed on the Disposal Site Registry where remedial actions are funded entirely by the Hazardous Substance Control Fund, the Department: Shall publish the final selection of remedy in a major local newspaper of general circulation; and May initiate the community relations and public information procedures set forth in §E of this regulation. For any other responses to releases or threatened releases conducted pursuant to COMAR 26.14.02, the Department may initiate procedures for community relations and public information in accordance with §E of this regulation. The Department may initiate procedures for public information and community relations for any release that may have an impact on the public health or the environment. Community relations and public information procedures may include the following: Opportunity for public informational meetings; Opportunity for public comment on the proposed selection of remedy; and Notice of informational meetings and proposed selections of remedy in a major local newspaper of general circulation. In addition to other community relations and public information procedures, the Department shall, upon any county's request, provide information on sites of interest to the chief health or environment officer of the county, and an opportunity to consult with the Department before the Department's final selection of remedy. In addition to other community relations and public information procedures, the Department may compile and maintain an administrative record that contains the documents that form the basis for the selection of a response action. Responsible persons shall reimburse the Department for all expenditures from both the Maryland Oil Disaster Containment, Clean-Up, and Contingency Fund and the State Hazardous Substance Control Fund, including but not limited to, costs of response, restoration, oversight, enforcement, investigation, equipment, personnel, fringe benefits, indirect overhead, legal expenses, and interest on the amounts recoverable. Environment Article, §§4-405(a)(7), 7-208(e)(10), and 7-208(f), Annotated Code of Maryland Effective date: May 10, 1993 (20:9 Md. R. 781) When the Department has reason to believe that there is a release or substantial threat of release into the environment of any hazardous substance, the Department may: Add the location of the release or the threatened release to the State Master List of proposed sites; Assess risk to human health and the environment; Decide whether a response should be carried out under State superfund or other enforcement authority; Evaluate and perform or manage removal or remedial response actions; and Request assistance from the federal or local governments. Methods of discovery by the Department of a site that has the potential for, or has demonstrated, release of a hazardous substance include: Report by owners, employees, or users of the site; Report or complaint by citizens, or State or county agencies, of an observed or suspected release or discharge of hazardous substances, or of information concerning health-related effects; and Investigations or inspections by the Department to identify hazardous sites. Placement of Sites on State Master List. The Department may place a site on the State Master List if the Department has reason to believe that a hazardous substance has been or may be released at a site or if the Department has been notified that hazardous substances may be present. If a site is placed on the State Master List a State site assessment may be conducted. Inclusion of a site on the State Master List does not constitute a final decision that response action is necessary. The State site assessment is an initial evaluation of a release or potential release. This evaluation may include a site visit, records search, sampling, and subsurface borings. The Department may use assessments and investigations conducted pursuant to the National Contingency Plan, and information collected by federal, State, or local governments pursuant to other enforcement activities, investigations, or responses. The information gathered during a State site assessment may include: Site history and nature of waste handling; Description of known contaminants and their pathways of migration; Identification of human and environmental targets; Recommendation on whether further action is warranted; and Other information relevant to the source, any potential health or environmental impacts, and responsible persons. After a State site assessment, the Department may indicate that no further remedial action is planned for a site based upon the available information. Further Response Action. If a site is to be considered for further response action, the Department: Shall report the results to the chief health or environment officer of the county in which the site is located; and May proceed in accordance with Regulation .04, .05, or .06 of this chapter. The Disposal Site Registry (DSR) is a listing of hazardous waste sites in the State, published in the Maryland Register, which ranks sites in priority for State remedial action. All sites in the State listed by EPA on the National Priorities List shall be listed in the DSR. The Department may list any hazardous waste site in the DSR on the basis of public health and environmental threat. The Department shall rank sites listed in the DSR based on the Department's determination of the relative threat to human health and the environment, taking into account potential hazards to the public health and the environment, the risk of fire or explosion, toxic hazards, and the criteria established under the federal act. For sites that have been ranked by EPA, the Hazard Ranking System score shall be used as guidance. A removal action may be performed at any stage of the response process, if the Department determines that there is a release or substantial threat of release of hazardous substances into the environment that should be removed, stabilized, or otherwise mitigated. In an emergency, the Department may perform a removal action immediately. If the Department determines that time allows, before beginning a removal action the Department shall make an effort to identify the responsible persons and determine whether those persons will perform the removal action properly and in a timely manner. If a person other than the Department performs the removal, the Department may perform a managerial or oversight function and has the authority to approve, disapprove, or alter the manner in which the removal is being conducted. Unless the Department determines that a removal action will be done properly and in a timely manner by a responsible person, the Department may perform the removal. Extent of Removal. Removal is terminated when the Department determines that the threat of release no longer exists or is otherwise mitigated. If the Department determines that the removal action does not fully address the threat and the release may require further remedial action, there shall be an orderly transition from removal to remedial response activities. The remedial response process consists of several phases, including: Determination of the extent of the potential impact on public health and the environment; Selection of the remedy, design, and implementation of the remedy; and Maintaining and operating the remedy. The Department may modify response procedures set forth in §A of this regulation at sites not listed by the Environmental Protection Agency on the National Priorities List, if the Department determines that this modification will: Result in a more efficient response; and Be protective of human health and the environment. Responsibility for Performing Remediation. Responsible persons may be required to conduct and directly fund a remediation pursuant to an order issued by the Department, EPA, or a court. An order requiring remedial response may set forth specific conditions for the performance of the remediation. At sites listed on the National Priorities List, the Department may exercise State authority and oversee response actions. Unless the Department determines that a remedial action will be done properly and in a timely manner by a responsible person, the Department may perform the remediation and seek cost recovery. Management of Remediation. The Department may provide management oversight of response activities. Management oversight includes, but is not limited to: Review, comment, and approval of reports, plans, documents, and data relating to the response action; Site visits; Sampling; and Enforcing compliance with cleanup standards, State or federal laws, regulations, and other requirements. Evaluating Releases or Threats of Releases. Investigations shall be conducted to characterize site conditions leading to development of remedial alternatives. These activities to evaluate the nature and threat posed by the hazardous substances may include field and other investigations to: Characterize physical features of the site; Characterize air, surface water, and ground water; Determine waste characteristics including quantity, toxicity, persistence, propensity to bioaccumulate, and mobility; Identify environmental pathways and exposure routes; and Determine the extent of source contamination. The Department shall determine the applicability of cleanup standards and State or federal laws, regulations, and other requirements. In establishing cleanup standards and other requirements the Department may use the following: Federal or State maximum contaminant level goals (MCLGs) and maximum contaminant levels (MCLs); Background levels of contaminants; Risk evaluations performed by the Department based upon site-specific information and current scientific information; and Other federal or State standards that may be appropriate or relevant. Determining the Type of Response Action—Selection of Remedy. Remedial alternatives shall be developed and evaluated for remedy selection. Factors to be considered in evaluating and comparing alternatives include: Protection of human health and the environment; Compliance with cleanup standards and State or federal laws, regulations, and other requirements; Long-term effectiveness and permanence; Reduction of toxicity, mobility, or volume through treatment; Short-term effectiveness; Implementability; and Cost. To be considered for selection, it is mandatory that any remedial alternative meet the criteria listed as factors in §F(2)(a) and (b) of this regulation. The criteria listed as factors in §F(2)(c)—(f) of this regulation are then considered. The lowest cost remedy which provides an acceptable balance of these four criteria may be selected. Types of costs that are considered within the factor in §F(2)(g) of this regulation include: Capital costs, including both direct and indirect costs; Annual operating and maintenance costs; and Net present value of capital and annual operating and maintenance costs. During remedy selection, comments from the county in which the site is located and comments from the public shall be considered to the extent practicable, and may be a modifying factor. The Department shall select the remedy. The Department may approve accelerated remediation, and may divide the site or remedial process into phases, upon a determination that: A portion of the remediation can be accomplished expeditiously; and The accelerated portion of the remediation would be consistent with the anticipated remedy for the entire site. Implementation of the Remedy. The remedial design/remedial action stage includes development of the design of the selected remedy and implementation of the remedy through construction. The Department may monitor or enforce compliance of the remedial action with cleanup standards and State or federal laws, regulations, and other requirements. Design and implementation of the remedy shall conform with the selected remedy. A period of operation and maintenance may follow installation of the remedy. Remediation may cease when, in the Department's judgment: Sufficient time has elapsed to ensure that contaminant levels have been reduced to levels that are protective of human health and the environment; or No detectable contamination remains at the site. If the Department determines that the selected remedy is not likely to be effective within a reasonable time, then the Department may require a reevaluation of the selection of remedy in accordance with §F of this regulation. Environment Article, §§4-405(a)(7), 7-208(e)(10), and 7-208(f), Annotated Code of Maryland Effective date: May 10, 1993 (20:9 Md. R. 781) Established under Environment Article, Title 7, Subtitle 5, Annotated Code of Maryland, the purpose of the Voluntary Cleanup Program is to: Encourage the investigation of eligible properties with known or perceived contamination; Protect public health and the environment where cleanup projects are being performed or need to be performed; Accelerate cleanup of eligible properties; and Provide predictability and finality to the cleanup of eligible properties. The provisions of this chapter establish the requirements for an applicant or participant of the Voluntary Cleanup Program. In this chapter, the following terms have the meanings indicated. Terms Defined. “Active enforcement” means after the Department has issued a notice of violation, order, consent order, or enforcement action other than a site complaint and until completion of activities required by that action. “Applicant” means a person who applies to participate in the Voluntary Cleanup Program. “Certificate of Completion” means a written determination issued to a participant by the Department that meets the requirements described under Environment Article, §7-513, Annotated Code of Maryland. “Clean energy” means: Solar photovoltaic technology; Solar heating; Geothermal; Wind; Biofuels; Ethanol; Other qualifying biomass, as defined in Public Utilities Article, §7–701(1), Annotated Code of Maryland; The ocean, including energy from waves, tides, currents, and thermal differences; A fuel cell that produces energy from biofuels, ethanol, or other qualifying biomass; Energy efficiency and conservation; and Any other technology or service that the Maryland Energy Administration determines will contribute directly or indirectly to the production of energy from renewable or sustainable sources, or to the improvement of efficiency in the use of energy. “Contamination” means a release, discharge, or threatened release of: A controlled hazardous substance, as defined in Environment Article, §7–201(b), Annotated Code of Maryland; or Oil, as defined in Environment Article, §4–401(h), Annotated Code of Maryland. “Department” means the Maryland Department of the Environment. “Eligible applicant” has the meaning stated in Environment Article, §7–501(f), Annotated Code of Maryland. “Eligible property” has the meaning stated in Environment Article, §7–501(g), Annotated Code of Maryland. “Federal act” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986. “Hazardous substance” means a substance: Defined as a hazardous substance under §101(14) of the federal act; or Identified as a controlled hazardous substance by the Department in COMAR. “Inculpable person” has the meaning stated under Environment Article, §7–501(j), Annotated Code of Maryland. “No Further Requirements Determination” means a written determination issued by the Department that meets the requirements described under Environment Article, §7-506, Annotated Code of Maryland. “Participant” means an applicant accepted into the Voluntary Cleanup Program. “Person” means an individual, trust, firm, joint stock company, federal agency, corporation, including a government corporation, partnership, association, State, municipality, commission, political subdivision of a State, or interstate body. “Program” means the Voluntary Cleanup Program established under Environment Article, Title 7, Subtitle 5, Annotated Code of Maryland. “Renewable energy” means energy generated from a: Tier 1 renewable source, as defined under Public Utilities Article, §7–701(s), Annotated Code of Maryland; and Tier 2 renewable source, as defined under Public Utilities Article, §7–701(t), Annotated Code of Maryland. “Responsible person” has the meaning stated in Environment Article, §7–201(t), Annotated Code of Maryland. Nonrefundable Application Fees. To participate in the Program, an eligible applicant shall: Complete and submit an application on a form provided by the Department that includes the information required under Environment Article, §7-506(a)(1)(i), Annotated Code of Maryland; and Except as provided under §D of this regulation, pay to the Department: An initial application fee of $6,000; An application fee of $2,000 for each application submitted subsequent to the initial application for the same property; and An application fee of $2,000 for each application that is submitted subsequent to the initial application for a contiguous or adjacent property that is part of the same planned unit development or a similar development plan. Fees for Expedited Determination of Inculpable Person Status. A person that wishes to request an expedited determination of the person’s status as an inculpable person shall pay to the Department a fee of $2,000 upon submission of a written request to the Department for an expedited determination of inculpable person status. Additional Fees. If the Department issues a No Further Requirements Determination to a participant conditioned on certain uses of an eligible property or on the maintenance of certain conditions, the participant shall pay to the Department a fee of $2,000. If the Department issues a Certificate of Completion to a participant conditioned on the permissible use of an eligible property, the participant shall pay to the Department a fee of $2,000. A participant shall pay a fee of $2,000 upon submission of a request to alter a record of: A No Further Requirements Determination conditioned on certain uses of an eligible property or on the maintenance of certain conditions that has been recorded in the land records of the local jurisdiction; or A Certificate of Completion conditioned on the permissible use of the eligible property that has been recorded in the land records of the local jurisdiction. Waiver of Certain Fees. The Department shall waive the application fees required under §A(2) of this regulation if the applicant certifies that the applicant intends to use the eligible property to generate clean or renewable energy in accordance with Regulation .02 of this chapter. Eligibility. An applicant to the Program is eligible for the fee waiver provided under Regulation .03D of this chapter if: The intended use for clean or renewable energy has an anticipated yearly energy output of at least 2 megawatts; and The applicant completes the certification requirements under §§B—D of this regulation. An applicant shall submit with its Program application a Clean or Renewable Energy Certification on a form provided by the Department. The Clean or Renewable Energy Certification shall include: The type of clean energy or renewable energy to be generated at the eligible property; The anticipated yearly energy output in kilowatts; The construction schedule for the clean or renewable energy installation; and The anticipated date energy generation will begin. Upon completion of the Clean or Renewable Energy Certification form, the applicant shall: Sign, date, and notarize the form, attesting that all information provided in the form is correct; and Submit the form to the Program with the application for the eligible property. If the Department determines that the Clean or Renewable Energy Certification form is incomplete or that the eligible property is not eligible for a fee waiver: The Department shall notify the applicant; and Before the applicant may be accepted into the Program, the applicant shall either: Pay the application fee required under Regulation .03A(2) of this chapter; or Resubmit a complete Clean or Renewable Energy Certification form demonstrating that the applicant is eligible for a fee waiver. Not later than 5 years from the date that a Program participant whose application fee was waived is issued a No Further Requirements Determination or a Certificate of Completion, a participant shall submit to the Department verification that the eligible property is generating clean or renewable energy as described in a Clean or Renewable Energy Certification in accordance with this regulation. The verification required under §A of this regulation shall include the current yearly energy output from clean and renewable energy. Upon written request by a Program participant, the Department may issue an extension of the deadline to submit the verification required under §A of this regulation if the participant demonstrates, to the satisfaction of the Department, that the commencement of energy generation at the eligible property as described in the participant’s Clean or Renewable Energy Certification is delayed beyond 5 years from the date of the No Further Requirements Determination or Certificate of Completion due to circumstances outside of the participant’s control. A Program applicant or participant who submitted a Clean or Renewable Energy Certification and whose application fee was initially waived shall pay the application fee required under Regulation .03A(2) of this chapter if: The Department denies the applicant’s application to participate in the Program in accordance with Environment Article, §7-506(f), Annotated Code of Maryland; The applicant withdraws their application to participate in the Program in accordance with Environment Article, §7-506(g), Annotated Code of Maryland; The Department determines the applicant submitted false or inaccurate information in the Clean or Renewable Energy Certification form or the Program application; The participant is withdrawn from the Program in accordance with Environment Article, §7-512, Annotated Code of Maryland; Any permit or certificate necessary to construct the clean or renewable energy project at the eligible property is denied by the Department or the Public Service Commission and any opportunity for appealing the denial has passed; The applicant or participant of the eligible property subject to the approved clean or renewable energy project wants to revise or change the clean or renewable energy project, and the change or revision no longer complies with the provisions in Regulation .02 of this chapter; or The participant fails to timely submit the verification required under Regulation .05 of this chapter, demonstrating that the eligible property is generating yearly energy output of at least 2 megawatts from clean or renewable energy. A fee waiver resulting from a Clean or Renewable Energy Certification under this chapter does not relieve a person from the duty to comply with: The requirements on a person applying to participate or participating in the Program established under this subtitle, Environment Article, Title 7, Subtitle 5, Annotated Code of Maryland, or any other rules or policies of the Department; and Any other federal, State, or local government statute, regulation, or authorization applicable to a person applying to participate or participating in the Program or constructing or operating a clean or renewable energy project. Environment Article, Title 7, Subtitle 5, Annotated Code of Maryland Effective date: January 1, 2022 (48:25 Md. R. 1081)