EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
*sb1088*
SENATE BILL 1088
M3 4lr2901
By: Senator M. Washington
Introduced and read first time: February 2, 2024
Assigned to: Education, Energy, and the Environment
A BILL ENTITLED
AN ACT concerning 1
Environment – Public Participation in the Permitting Process – Alterations 2
FOR the purpose of authorizing judicial review of certain environmental permitting and 3
license decisions by the Department of the Environment at the request of certain 4
persons who meet certain federal standing requirements under certain 5
circumstances; repealing a certain provision of law authorizing the Department to 6
consolidate certain meetings or hearings under certain circumstances; requiring a 7
person applying for a certain permit from the Department to request an EJ Score 8
from the Department for the census tract where the applicant is seeking the permit 9
for purposes of including the score in the permit application; altering notice 10
requirements relating to certain environmental permitting and license applications; 11
requiring, instead of authorizing, a certain permit applicant to attend an 12
informational meeting or public hearing to present information concerning the 13
application; repealing certain provisions of law requiring the Department to prepare 14
a certain tentative permit determination; altering the contents of a certain record 15
compiled by the Department or the Board of Public Works; requiring the Department 16
or the Board to make a certain draft permit or license available for public inspection 17
in a certain manner; altering the circumstances under which a permit applicant may 18
apply to the Department for a certain refund of an application fee; and generally 19
relating to public participation in the environmental permitting process. 20
BY repealing and reenacting, with amendments, 21
Article – Environment 22
Section 1–601, 1–601.1, 1–602, 1–603, and 1–605 through 1–607 23
Annotated Code of Maryland 24
(2013 Replacement Volume and 2023 Supplement) 25
BY repealing 26
Article – Environment 27
Section 1–604 28
Annotated Code of Maryland 29 2 SENATE BILL 1088
(2013 Replacement Volume and 2023 Supplement) 1
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 2
That the Laws of Maryland read as follows: 3
Article – Environment 4
1–601. 5
(a) Permits issued by the Department under the following sections shall be issued 6
in accordance with this subtitle: 7
(1) Air quality control permits to construct subject to § 2–404 of this article; 8
(2) Permits to install, materially alter, or materially extend landfill 9
systems, incinerators for public use, or rubble landfills subject to § 9–209 of this article; 10
(3) Permits to discharge pollutants to waters of the State issued pursuant 11
to § 9–323 of this article; 12
(4) Permits to install, materially alter, or materially extend a structure 13
used for storage or distribution of any type of sewage sludge issued, renewed, or amended 14
pursuant to § 9–234.1 or § 9–238 of this article; 15
(5) Permits to own, operate, establish, or maintain a controlled hazardous 16
substance facility issued pursuant to § 7–232 of this article; 17
(6) Permits to own, operate, or maintain a hazardous material facility 18
issued pursuant to § 7–103 of this article; 19
(7) Permits to own, operate, establish, or maintain a low–level nuclear 20
waste facility issued pursuant to § 7–233 of this article; and 21
(8) Potable reuse permits issued in accordance with § 9–303.2 of this 22
article. 23
(b) For permits listed under subsection (a) of this section, a contested case hearing 24
may not occur. 25
(c) A final determination by the Department on the issuance, denial, renewal, or 26
revision of any permit listed under subsection (a) of this section is subject to judicial review 27
at the request of any person that: 28
(1) Meets the threshold standing requirements under federal law; and 29
(2) (i) Is the applicant; or 30
SENATE BILL 1088 3
(ii) Participated in a public participation process through the 1
submission of written or oral comments, unless [an]: 2
1. AN opportunity for public participation was not provided; 3
OR 4
2. THE EJ SCORE FOR THE CENSUS TRACT WHERE THE 5
APPLICANT IS SEEKING A PERMIT IS ABOVE TH E 75TH PERCENTILE . 6
(d) (1) Judicial review shall be on the administrative record before the 7
Department and limited to objections raised during the public comment period, unless the 8
petitioner demonstrates that: 9
(i) The objections were not reasonably ascertainable during the 10
comment period; or 11
(ii) Grounds for the objections arose after the comment period. 12
(2) The court shall remand the matter to the Department for consideration 13
of objections under paragraph (1) of this subsection. 14
(e) (1) Unless otherwise required by statute, a petition for judicial review by a 15
person that meets the requirements of subsection (c) of this section shall be filed with the 16
circuit court for the county where the application for the permit states that the proposed 17
activity will occur. 18
(2) The decision of the circuit court may be appealed to the Appellate Court 19
of Maryland. 20
(f) (1) [When this article requires more than one public informational meeting 21
or public hearing, the Department may consolidate some or all of the meetings or hearings 22
for the proposed facility with similar meetings or hearings. 23
(2) (i)] When this subtitle requires the Department to hold a public 24
informational meeting or public hearing, the Department shall hold the meeting or 25
hearing in accordance with the requirements of this paragraph. 26
[(ii)] (2) The Department may hold a public informational meeting 27
or public hearing required under this subtitle using teleconference or Internet–based 28
conferencing technology unless: 29
[1.] (I) An applicable provision of federal statute or 30
regulation requires the meeting or hearing to be held in person; or 31
[2.] (II) Subject to [subparagraph (iv) of this paragraph] 32
PARAGRAPH (4) OF THIS SUBSECTION , any person makes a timely request within the 33 4 SENATE BILL 1088
time [periods] PERIOD specified in [§§ 1–603(c)(1) and 1–604(a)(4)(i)] § 1–603(C)(1) of 1
this subtitle that the meeting or hearing be held in person. 2
[(iii)] (3) If the Department holds an in–person public informational 3
meeting or public hearing, the Department shall hold the meeting or hearing at a location 4
in the political subdivision and in close proximity to the location where the individual 5
permit applies. 6
[(iv)] (4) To protect public health and safety, the Department is not 7
required to hold an in–person public informational meeting or public hearing specified 8
under [subparagraph (ii)2 of this paragraph] PARAGRAPH (2)(II) OF THIS SUBSECTION 9
if an emergency declaration is issued by an executive authority of: 10
[1.] (I) The federal or State government; or 11
[2.] (II) The local government with jurisdiction over a 12
county or municipality where the in–person meeting or hearing would otherwise be held. 13
1–601.1. 14
(a) (1) A person applying for a permit listed under § 1–601(a) of this subtitle 15
shall [include in the permit application the EJ Score from the Maryland EJ tool] REQUEST 16
AN EJ SCORE FROM THE DEPARTMENT for the census tract where the applicant is 17
seeking a permit, unless the permit requires the applicant to use a tool developed by the 18
U.S. Environmental Protection Agency. 19
(2) ON RECEIVING AN EJ SCORE FROM THE DEPARTMENT FOR THE 20
CENSUS TRACT WHERE T HE APPLICANT IS SEEK ING THE PERMIT , THE APPLICANT 21
SHALL INCLUDE THE EJ SCORE IN THE PERMIT A PPLICATION. 22
(b) On receiving an application for a permit listed under § 1–601(a) of this 23
subtitle, the Department shall, in accordance with regulations adopted under this section, 24
review the EJ Score for the census tract where the applicant is seeking a permit [using the 25
Maryland EJ tool to verify the applicant’s information] FOR ENVIRONMENTAL IM PACTS 26
ON PUBLIC HEALTH OR NATURAL RESOURCES BEFORE DETERMINING WHETHER 27
THE APPLICATION IS COMPLETE . 28
(c) The Department shall adopt regulations to implement this section. 29
1–602. 30
(a) Wherever this subtitle requires the Department to publish notice: 31
SENATE BILL 1088 5
[(1) Notice shall be published at least once a week for 2 consecutive weeks 1
in a daily or weekly newspaper of general circulation in the geographical area in which the 2
proposed facility is located;] 3
(1) THE NOTICE SHALL BE: 4
(I) PUBLISHED ON THE DEPARTMENT ’S WEBSITE NO T LATER 5
THAN 10 DAYS AFTER RECEIPT O F A COMPLETED PERMIT APPLICATION; 6
(II) ON A QUARTERLY BASIS , E–MAILED TO THE APPROPRIATE 7
COUNTY OR LOCAL DEPARTMENTS OF PLANN ING OR LAND USE AUTH ORITY; AND 8
(III) PUBLISHED FOR 2 CONSECUTIVE WEEKS IN A NEWSPAPER 9
OF GENERAL CIRCULATI ON IN THE CENSUS TRA CT WHERE THE PROPOSE D FACILITY 10
IS LOCATED; 11
(2) THE NOTICE SHALL : 12
(I) BE INCLUSIVE AND CULT URALLY CONNECTED ; 13
(II) ENSURE ACCESSIBILITY AND LINGUISTIC 14
RESPONSIVENESS ; AND 15
(III) MAKE INFORMATION EASY TO FIND, UNDERSTAND , AND USE 16
BY INTERESTED PERSON S; 17
(3) The notice shall include: 18
(i) The EJ Score for the census tract where the applicant is seeking 19
a permit, provided by the applicant under § 1–601.1 of this subtitle; 20
(ii) The address of the Department website for accessing the EJ 21
Score review conducted under § 1–601.1 of this subtitle; and 22
(iii) A description of the environmental justice indicators 23
contributing to the EJ Score of the census tract where the applicant is seeking a permit; 24
[(3)] (4) The Department may require notice of an informational meeting 25
or a public hearing by mail to each person requesting the meeting or hearing or to their 26
authorized representatives; AND 27
[(4)] (5) The Department may provide additional notice by requiring the 28
notice to be posted at the proposed facility or at public facilities in the geographical area of 29
the proposed facility[; and 30
6 SENATE BILL 1088
(5) The applicant shall bear all costs incurred by the Department in 1
providing notice]. 2
(b) (1) In addition to the requirements set forth in subsection (a) of this section 3
and notwithstanding any other requirements in this article, wherever this subtitle requires 4
the Department to publish notice of an application for a permit, the Department shall: 5
(i) Electronically post the notice of an application for a permit on 6
the Department’s website; and 7
(ii) Provide a method for interested persons to electronically request 8
any additional notices related to an application for a permit. 9
(2) The notice required under paragraph (1) of this subsection shall 10
include: 11
(i) The name and address of the applicant; 12
(ii) A description of the location and the nature of the activity for 13
which the permit has been sought; 14
(iii) A reference to the applicable statutes or regulations governing 15
the application process; 16
(iv) The time and place of any scheduled informational meeting or 17
public hearing, or a description of where this information can be found; 18
(v) A description of where further information about the permit 19
application can be found; 20
(vi) 1. The EJ Score for the census tract where the applicant is 21
seeking a permit, provided by the applicant under § 1–601.1 of this subtitle; and 22
2. The EJ Score review conducted under § 1–601.1 of this 23
subtitle; and 24
(vii) Any other information that the Department determines is 25
necessary. 26
[(c) The Department may require the applicant to publish and send the notices 27
required in subsection (a) of this section.] 28
1–603. 29
(a) The Department shall cause to be published notice of applications for permits. 30
SENATE BILL 1088 7
(b) The Department shall assure that applications for permits shall be available 1
to the public for inspection and copying. 2
(c) (1) [Upon] ON written request made within 10 working days after 3
publication of a notice of application, [or in its own discretion,] the Department shall 4
provide an opportunity for an informational meeting with respect to the application. 5
(2) [The informational meeting may be canceled if all persons who made 6
timely written requests withdraw the requests prior to the meeting. 7
(3) Unless the notice of application contained a notice of the informational 8
meeting, the] THE Department shall publish notice of the informational meeting. 9
(d) (1) The Department [may] SHALL require the applicant to attend an 10
informational meeting or public hearing and present information concerning the 11
application. 12
(2) If the applicant fails to appear and present information after a request 13
from the Department, the application may be denied. 14
[1–604. 15
(a) (1) After the Department receives the permit application, the Department 16
shall prepare a tentative determination, which shall include the following information: 17
(i) A proposal to issue or to not issue a permit; 18
(ii) Any proposed permit limitations and conditions; 19
(iii) A brief explanation of the Department’s tentative determination; 20
and 21
(iv) Any proposed schedule of compliance. 22
(2) If the tentative determination is to issue a permit, the tentative 23
determination shall include a draft permit, which shall be available to the public for 24
inspection and copying. 25
(3) The Department shall publish a notice of the tentative determination. 26
This publication shall allow 30 calendar days for public comment before the issuance of the 27
final determination. 28
(4) (i) The Department shall schedule a public hearing on the tentative 29
determination when a written request for a public hearing is made within 20 days of 30
publication of a notice of the tentative determination. 31
8 SENATE BILL 1088
(ii) The public hearing may be canceled if all persons who made 1
timely written requests withdraw the requests prior to the meeting. In addition, the 2
Department may schedule a public hearing on a tentative determination at its discretion. 3
(b) (1) The Department shall prepare a final determination if: 4
(i) Written comments adverse to the tentative determination were 5
received by the Department within 30 days after the publication of the notice of tentative 6
determination pursuant to this section; 7
(ii) Comments adverse to the tentative determination were received 8
in writing at, or within 5 days after, the public hearing conducted pursuant to this section; 9
(iii) Comments adverse to the tentative determination were received 10
orally at the public hearing conducted pursuant to this section and the Department 11
prepared a transcript of the comments made at the hearing; or 12
(iv) The final determination is substantively different from the 13
tentative determination and all persons aggrieved by the final determination have not 14
waived, in writing, their right to request a contested case hearing. 15
(2) If the Department is required to prepare a final determination under 16
this section, the Department shall publish a notice of the final determination. 17
(3) If the Department is not required to prepare a final determination 18
under this section, the tentative determination is a final decision by the Department when 19
the permit is issued or denied.] 20
1–605. 21
(a) A person petitioning for judicial review in accordance with § 1–601 of this 22
subtitle or § 5–204 or § 16–204 of this article shall file the petition in accordance with the 23
Maryland Rules. 24
(b) A party submitting a petition for judicial review shall file the petition within 25
30 days after publication of a notice of final determination. 26
(c) An action for judicial review brought in accordance with § 1–601 of this 27
subtitle or § 5–204 or § 16–204 of this article shall be conducted in accordance with the 28
Maryland Rules. 29
(d) (1) A party to the judicial review action may not challenge a facility’s 30
compliance with zoning and land use requirements or conformity with a county plan issued 31
under Title 9, Subtitle 5 of this article. [However, nothing in this subtitle shall prevent a 32
party from challenging whether the Department has complied with §§ 2–404(b)(1)(ii) and 33
9–210(a)(3) of this article, when applicable, nor does this subtitle prevent a party from 34
contesting the compliance of the facility with zoning and land use or county plan 35 SENATE BILL 1088 9
requirements in any proceeding brought in accordance with and under any applicable local 1
laws.] 2
(2) A PARTY MAY CHALLENGE WHETHER THE DEPARTMENT HAS 3
COMPLIED WITH §§ 2–404(B)(1)(II) AND 9–210(A)(3) OF THIS ARTICLE , WHEN 4
APPLICABLE. 5
(3) A PARTY MAY CONTEST TH E COMPLIANCE OF THE FACILITY WITH 6
ZONING AND LAND USE OR COUNTY PLAN REQUI REMENTS IN ANY PROCE EDING 7
BROUGHT IN ACCORDANC E WITH AND UNDER ANY APPLICABLE LOCAL LAW S. 8
1–606. 9
(a) (1) In this section the following words have the meanings indicated. 10
(2) “Board” means the Board of Public Works. 11
(3) “License” means a license under § 16–202 of this article. 12
(b) This section applies to: 13
(1) A permit listed under § 1–601(a) of this subtitle; 14
(2) A permit listed under § 5–204(f) of this article; or 15
(3) A license issued under § 16–202 of this article. 16
(c) Any judicial review of a determination provided for in accordance with § 17
1–601 of this subtitle or § 5–204 or § 16–204 of this article shall be limited to a record 18
compiled by the Department or Board, consisting of: 19
(1) Any permit or license application and any data submitted to the 20
Department or Board in support of the application; 21
(2) Any [draft permit or] license issued by the Department or Board; 22
(3) Any notice of intent from the Department or Board to deny the 23
application or to terminate the permit or license; 24
(4) A statement or fact sheet explaining the basis for the determination by 25
the Department or Board; 26
(5) All documents referenced in the statement or fact sheet explaining the 27
basis for the determination by the Department or Board; 28
10 SENATE BILL 1088
(6) All documents, except documents for which disclosure is precluded by 1
law or that are subject to privilege, contained in the supporting file for any draft permit or 2
license; 3
(7) All comments submitted to the Department or Board during the public 4
comment period, including comments made on the draft application; 5
(8) Any [tape] RECORDING or transcript of any public hearings held on 6
the application; and 7
(9) Any response to any comments submitted to the Department or Board. 8
(d) [(1)] When a draft permit or license [or tentative determination] is issued, 9
the Department or Board shall: 10
[(i)] (1) Make available for inspection and copying [no later than] 11
10 DAYS BEFORE the date the DRAFT permit[,] OR draft license[, or tentative 12
determination is issued] IS SCHEDULED FOR ISS UANCE: 13
[1.] (I) All permit or license applications; 14
[2.] (II) Documents submitted with a permit or license 15
application; AND 16
[3. All documents relied on in making the tentative 17
determination; and 18
4.] (III) A privilege log that identifies all documents not 19
produced for inspection in accordance with subsection (c)(6) of this section and states the 20
reasons for withholding each document; and 21
[(ii)] (2) Extend the public comment period by 60 days [on request 22
by a person]. 23
[(2) A request submitted to the Department or Board under paragraph 24
(1)(ii) of this subsection shall be: 25
(i) Submitted in writing; and 26
(ii) Made before the expiration of the original comment period. 27
(3) A public comment period may not be extended more than once under 28
paragraph (1)(ii) of this subsection.] 29
1–607. 30
SENATE BILL 1088 11
(a) (1) This subsection applies to applications for all licenses and permits 1
issued, or required to be reissued, by the Department. 2
(2) [On or before January 1, 1998, and each year thereafter, in] IN 3
consultation with interested parties, the Department shall publish expected review times 4
for each licensing and permitting program. 5
(3) [On or before January 1, 1998, for] FOR each licensing and permitting 6
program, the Department shall offer assistance and information to persons which may 7
include: 8
(i) Written lists of information and materials required with 9
applications; 10
(ii) Written lists of common application questions and mistakes; 11
(iii) Preapplication meetings with prospective applicants to address 12
technical issues; 13
(iv) Written receipts to the applicant [upon] ON submission of an 14
application; and 15
(v) The status of active applications. 16
(b) (1) This subsection applies to permits which are: 17
(i) Identified in § 1–601(a) of this subtitle; or 18
(ii) Issued under Title 5, Subtitle 9 of this article. 19
(2) The Department shall provide to the applicant: 20
(i) A notice of completed application; or 21
(ii) If the Department determines that the application is incomplete, 22
the reasons, in writing, that the application was determined to be incomplete. 23
(3) [(i) For permits identified in § 1–601(a) of this subtitle, the notice of 24
completed application shall include an estimated time for issuance of the tentative 25
determination if requested by the applicant. 26
(ii)] For permits issued under Title 5, Subtitle 9 of this article, the 27
notice of completed application shall include an estimate of the date by which the 28
Department will grant, deny, or condition the permit. 29
12 SENATE BILL 1088
(4) A permit applicant may apply to the Department for a refund of all or 1
a portion of the application fee if[: 2
(i) 1. For permits identified in § 1–601(a) of this subtitle, the 3
Department fails to issue a tentative determination regarding the application within the 4
estimated time provided in the notice of completed application; or 5
2. For permits issued under Title 5, Subtitle 9 of this article, 6
the Department fails to grant, deny, or condition a permit within the time periods provided 7
under § 5–906 of this article; 8
(ii) The] THE applicant demonstrates that the delay was caused 9
solely by the Department and was not the result of procedures or requirements outside the 10
control of the Department, including: 11
[1.] (I) Reviews by federal, local, or other State government 12
agencies; 13
[2.] (II) Procedures for public participation; or 14
[3.] (III) The failure of the applicant to submit information 15
to the Department in a timely manner[; and 16
(iii) 1. For permits identified in § 1–601(a) of this subtitle, the 17
applicant applies to the Department within 60 days after the estimated time for issuance 18
of a tentative determination; or 19
2. For permits issued under Title 5, Subtitle 9 of this article, 20
the applicant applies to the Department within 60 days after the date by which the 21
Department was to have granted, denied, or conditioned a permit under the time periods 22
provided under § 5–906 of this article. 23
(5) The Secretary, or the Secretary’s designee, shall review the refund 24
request and determine if a refund of any amount is appropriate]. 25
[(6)] (5) If the Secretary denies the refund request, the Department shall 26
provide the applicant a written explanation of the denial and of the procedures and 27
requirements outside the control of the Department on which the denial was based within 28
60 days. 29
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 30
October 1, 2024. 31