The Maryland General Assembly, the state’s legislative body meets in regular session for 90 days each year beginning the second Wednesday in January to act on more than 2,500 pieces of legislation.
On sine die, when the legislature adjourned at midnight on the 90th day, on April 8, 2019, a total of 864 bills and 2 resolutions passed both chambers. The Governor has until May 28, the 30th day after presentment to sign or veto bills.
This post is a review of key environmental bills passed this session. Maryland has been described as having more pages of environmental statutes and regulations on a per capita basis than any other state. The 32 new laws compiled below add to that regulatory scheme. Savvy players in the environmental industrial complex will find business opportunities to lead and profit in environmental matters, including opportunities advantaged by these newly enacted laws.
Expanded Polystyrene Ban
The Maryland General Assembly enacted the first statewide ban of expanded polystyrene foam. Beginning July 1, 2020, Senate Bill 285/House Bill 109 (both passed) prohibit a person from selling or offering for sale in the state an “expanded polystyrene food service product” and a “food service business,” which includes specified businesses, institutional cafeterias, or schools from selling or providing food or beverages in an expanded polystyrene food service product.
Although foam coffee cups and plates are often referred to as “Styrofoam®,” that terminology is incorrect. Styrofoam is actually a registered trademark of Dow Chemical Company and is a brand generally used in industrial settings for building materials and pipe insulation. Styrofoam is not used in the food service industry for coffee cups, coolers, or packaging materials, which are generally made of expanded polystyrene.
The Maryland Department of the Environment (MDE) may adopt regulations to implement the bills. MDE may grant to a food service business or school a waiver from the bills’ prohibition for up to one year if MDE determines that compliance would present an undue hardship or a practical difficulty that is not generally applicable to other food service businesses or schools in similar circumstances. A unit of county government must enforce the bill’s prohibitions and may impose a penalty of up to $250 on a person or food service business that violates the bill’s prohibitions. However, the monetary penalty may only be imposed if the unit of county government first issues a written notice of violation and the violation is not corrected within three months of the written notice.
Solid Waste Management
In an effort to promote solid waste diversion through a combination of recycling, composting, landfilling, energy recovery, and exporting for disposal or recycling, House Bill 510 (passed) prohibits an owner or operator of a refuse disposal system from accepting loads of separately collected yard waste or food waste for final disposal unless the owner or operator provides for the “organics recycling” of the yard or food waste. “Organics recycling” means any process in which organic materials are collected, separated, or processed and returned to the marketplace in the form of raw materials or products, and includes anaerobic digestion and composting.
In Maryland, state law does not address carryout bags provided by retail establishments. However, local jurisdictions with general taxing powers (e.g., Baltimore City, Baltimore County, and Montgomery County) have the authority to levy a bag fee on disposable plastic carryout bags that are clogging waterways, harming wildlife, and consuming valuable landfill space to discourage the use of disposable bags or to promote bag recycling. House Bill 1166 (passed) authorizes Howard County to impose, by law, such a fee. The fee may not exceed five cents for each disposable bag used.
Maryland law sets mandatory recycling rates for state government and local jurisdictions, as well as a voluntary statewide recycling goal of 60% by 2020. Each county (including Baltimore City) must prepare a recycling plan that addresses how the jurisdiction will achieve its mandatory recycling rate. Senate Bill 370 (passed) requires that each county recycling plan address the collection and recycling of recyclable materials from specified large office buildings by October 1, 2020. Additionally, by October 1, 2021, the owner of a building that has at least 150,000 square feet of office space must provide recycling receptacles for the collection of recyclable materials and for the removal of specified materials deposited into the recycling receptacles so that the materials can be further recycled.
Climate Change and Renewable Energy
The Transportation and Climate Initiative of the Northeast and Mid-Atlantic States is a regional collaboration that seeks to improve transportation, develop the clean energy economy, and reduce carbon emissions from the transportation sector. There are 13 participating jurisdictions, and Maryland has been an active participant in TCI since its inception in 2010. Senate Bill 249/House Bill 277 (both passed) authorize the Governor to include the State as a full participant in any regional governmental initiative, agreement, or compact that limits or reduces GHG emissions from the transportation sector. However, the State may only withdraw from such an initiative, agreement, or compact with statutory approval from the General Assembly.
In Maryland, over 640,000 public school students receive transportation services. In total, local school systems use over 7,200 school vehicles for student transportation services. In an effort to reduce GHG in the State, House Bill 1255 (passed) establishes the Zero-Emission Vehicle School Bus Transition Grant Program within MDE, and the Zero-Emission Vehicle School Bus Transition Fund to provide funding for the program. A “zero-emission” vehicle is any vehicle that is determined by the Secretary of Transportation to be of a type that does not produce any tailpipe or evaporative emissions and has not been altered from the manufacturer’s original specifications. The purpose of the program is to provide grants to local boards of education (and entities that contract with local boards to provide transportation services) to purchase school buses that are zero-emission vehicles; install electric vehicle infrastructure for charging school buses that are zero-emission vehicles; and, fund pilot programs to experiment with a transition to school buses that are zero-emission vehicles.
Clean Energy Jobs
Maryland’s Renewable Portfolio Standard was enacted in 2004 to facilitate a transition to renewable sources of energy. Electric companies (utilities) and other electricity suppliers must submit renewable energy credits equal to a percentage specified in statute each year or else pay an alternative compliance payment equivalent to their shortfall. Senate Bill 516 (passed) increases the RPS from 25% by 2020 to 50% by 2030 and makes other related changes. The bill requires at least 1,200 megawatts of additional offshore wind generating capacity to begin operating not later than 2030 and increases the carve-out for solar energy to 5.5% in 2019, with further annual increases until it reaches 14.5% in 2030. The expired Tier 2 source of RPS, large hydropower, is reestablished for two years through 2020. And a total of up to $15 million is transferred from the Strategic Energy Investment Fund for specified purposes, including workforce development and investment in clean energy industries.
Sea Level Rise Inundation and Coastal Flooding
In 2014 the legislature established the original “Coast Smart” siting and design criteria requirements including created a Coast Smart Council. Coast Smart is defined as a construction practice in which preliminary planning, siting, design, construction, operation, maintenance, and repair of a structure or highway facility avoids or minimizes future impacts associated with coastal flooding and sea level rise inundation, and includes design criteria and siting criteria that are applicable throughout the entire life cycle of a project. House Bill 1427 (passed) limits the applicability of provisions governing compliance of specified State and local projects with Coast Smart siting and design criteria to specified State and local capital projects. The bill also delays the implementation date of the Coast Smart siting and design criteria that are modified and made more broadly applicable from July 1, 2019, to July 1, 2020.
In response to claims by environmentalists that existing forest cover protection laws have not been efficacious, during the 2019 session, the General Assembly considered several bills aimed at assessing the state’s forest conservation efforts. Senate Bill 729/House Bill 735 (both passed) require the state to conduct a technical study to review changes in forest cover and tree canopy in the state.
Senate Bill 234/House Bill 272 (both passed) make changes relating to the administration of state and local forest conservation funds. The bills require a person to demonstrate, before a payment is made into the funds, that appropriate credits generated by a forest mitigation bank in the same county or watershed are not available. The bills also require a local authority to provide to DNR and make available to the public a general plan for identifying appropriate and potentially available areas for mitigation projects, and detailed accounting procedures for accurately tracking the money of the local forest conservation fund. A local authority must ensure that the equivalent number of acres for which money is collected and paid into its forest conservation fund is mitigated in accordance with authorized afforestation, reforestation, and conservation techniques.
Water Quality and Land Management
Laws enacted in 1998 required agricultural operations with $2,500 or more in gross annual income and livestock operations with 8,000 pounds or more of live animal weight to have and comply with a nutrient management plan for nitrogen and phosphorus. A nutrient management plan is prepared to “manage the amount, placement, timing, and application of animal waste, commercial fertilizer, sludge, or other plant nutrients to prevent pollution by transport of bioavailable nutrients and to maintain productivity.” Senate Bill 546 (passed) makes changes to nutrient management plan compliance, enforcement, and reporting; concentrated animal feeding operation permitting and fees; and water quality monitoring in tributaries located on the lower Eastern Shore.
Senate Bill 546 also requires that for any person to begin construction on any part of a new concentrated animal feeding operation, the person must hold a discharge permit issued by MDE prior to construction.
Stormwater and Flood Management
Senate Bill 269/House Bill 428 (both passed) authorize MDE, under its existing comprehensive flood management grant program, which program has not been funded since 2002 and has not been operational, to award grants to subdivisions that have incurred at least $1 million in infrastructure damage by a flood event that occurred on or after January 1, 2009.
Water and Sewer Services
Between October 1, 2018, and January 31, 2019, there were 342 reports of incidents of sewer overflows or treatment bypasses (an average of 21 per week). House Bill 417 (passed) establishes new requirements regarding the content of the public notice procedures developed by MDE, in cooperation with the Maryland Department of Health, local health departments, and local environmental health directors, related to sewer overflows and treatment plant bypasses. The bill also repeals the requirement for the owner or operator of any sanitary sewer system, combined sewer system, or wastewater treatment plant to report sewer overflows or treatment plant bypass events to MDE via telephone.
There are more than 420,000 septic systems in Maryland. While failing septic systems are referenced in statute and in regulations with regard to septic system upgrades and funding from the Bay Restoration Fund, the term “failing on-site sewage disposal system” is not defined in statute or regulation. House Bill 190 (passed) defines “failing on-site sewage disposal system” as an on site sewage disposal system (commonly referred to as a septic system) or a cesspool, or a component of a septic system or a cesspool, that is a threat to public health due to the potential for direct contact between sewage and members of the public, significant noncompliance with the standards and conditions of the permit (for a permitted system), or a failure to prevent sewage from reaching the surface of the ground; sewage from backing up into a structure due to slow soil absorption of sewage effluent; sewage from leaking from a sewage tank or collection system; unless specifically authorized by a groundwater protection report approved by MDE before January 1, 2019, groundwater degradation; or surface water degradation.
As long term potable water shortages increasingly are predicted across the globe, water conservation efforts have become more prominent. One avenue to conserve water is graywater recycling, which is an on-site wastewater treatment and recycling system. Graywater systems are designed to safely manage wastewater and reduce water consumption. In 2018 the legislature authorized the use of “graywater” under specified conditions for residential purposes including household gardening, composting, lawn watering, landscape irrigation, or flushing of a conventional toilet or urinal. House Bill 539 (passed) authorizes a person to use “reusable diverted water” for beneficial purposes, including gardening, composting, lawn watering, and irrigation. Reusable diverted water can only be used on the site where it originates and in accordance with applicable state and local laws or regulations, including plumbing codes. “Reusable diverted water” is water that is generated by backwashing an on-site potable water treatment system or using an ice maker; is collected for reuse instead of discharged to a residential on-site sewage disposal system; and contains no constituents that are detrimental to public health or the environment.
Sediment and Erosion Control
Senate Bill 505/House Bill 703 (both passed) require each jurisdiction that is delegated authority to enforce sediment and erosion control laws and regulations to submit an annual report to MDE by January 1 of each year. The report from each delegated authority must include the total number of cases alleging violations.
Wetlands Permits and Licenses
The Wetlands and Waterways Program within MDE administers a statewide program for the management, conservation, and protection of Maryland’s tidal wetlands and nontidal wetlands and waterways, including shoreline stabilization projects. House Bill 406 (passed) limits the application fee charged for a structural shoreline stabilization project located on or adjacent to a state owned lake to a maximum of $250.
A “nonwater-dependent project” is a temporary or permanent structure that, by reason of its intrinsic nature, use, or operation, does not require location in, on, or over state or private wetlands. Senate Bill 939/House Bill 28 (both passed) establish that a pump, a pipe, or any other equipment attached to a pier that is associated with a permitted shellfish nursery operation is not a nonwater-dependent project for the purpose of wetlands license and permit requirements. The bills specify that, as long as installing such equipment (for the purpose of cultivating shellfish seed in a permitted shellfish nursery) does not require increasing the length, width, or channelward encroachment of the pier, a person does not need to first obtain a tidal wetlands license or permit from the Board of Public Works or MDE, and such activity is a lawful use of private wetlands.
Dewatering is an activity where groundwater and surface water is removed from a mine to provide workably dry conditions in the mine. Senate Bill 54/House Bill 36 (both passed) require a surface mining permittee to permanently replace a failed water supply (that is within a zone of dewatering influence) within 45 days after learning about a specified water supply failure.
The Maryland Oil Disaster Containment, Clean-up and Contingency Fund was established in 1986 to provide funding to MDE’s oil pollution prevention programs, such as permitting, enforcement, and oil spill response. The Oil Contaminated Site Environmental Cleanup Fund was established in 1993 to reimburse underground storage tank owners for costs incurred during site cleanups. Senate Bill 1031 (passed) extends the current fee (8 cents per barrel) assessed on oil transferred into the State until July 1, 2021; beginning July 1, 2021, the fee is 5 cents per barrel.
Elevated Blood Lead Level
According to the Centers for Disease Control and Prevention there is no safe level of lead exposure. House Bill 1233 (passed) redefines elevated blood lead level as it applies to specified provisions of state law that initiate case management, notification, and lead risk reduction requirements. Elevated blood lead is redefined to mean a quantity of lead in blood that exceeds the blood lead reference level as determined by CDC on or after October 1, 2019, or beginning one year after the date that CDC revises the blood lead reference level until one year after a subsequent revision, the revised blood lead reference level determined by CDC.
House Bill 1233 also requires MDE to adopt regulations for conducting environmental investigations to determine lead hazards, and include a summary of the results of any environmental investigation conducted pursuant to the bill in its annual report on statewide childhood blood lead testing. Additionally, beginning July 1, 2020, an owner of affected property must satisfy the modified reduction risk standard within 30 days after receipt of written notice that a person at risk who resides on the property has an elevated blood lead greater than or equal to the reference level (instead of 10 µg/dL) and an environmental investigation has concluded that there is a defect at the affected property.
Testing for Lead in Drinking Water Outlets in School Buildings
In 2017 the legislature required MDE to require periodic testing for the presence of lead in each “drinking water outlet” located in an occupied public or nonpublic school building. House Bill 1253 (passed) establishes that it is the intent of the General Assembly that schools work proactively to reduce the concentration of lead in drinking water outlets to a level below five parts per billion and that state and federal funds be made available to schools for that purpose.
Use of Antimicrobial Drugs
The U.S. Food and Drug Administration indicates that antimicrobial resistance is a national and worldwide public health challenge. State law, since 2017 prohibits the administration of a medically important antimicrobial drug to cattle, swine, or poultry solely for the purpose of promoting weight gain or improving feed efficiency. As of January 1, 2018, a medically important antimicrobial drug may be administered to cattle, swine, or poultry if, in the professional judgment of a licensed veterinarian, the drug is necessary. Senate Bill 471/House Bill 652 (both passed) modify provisions governing the administration of medically important antimicrobial drugs to cattle, swine, or poultry, including by, among other things, expressly prohibiting the drugs from being administered in feed or water unless ordered by a licensed veterinarian through a specified drug prescription or a veterinary feed directive.
The 2018 federal Farm Bill allows a state to be the primary regulatory authority over the production of hemp in the state if the state submits a qualifying plan to the U.S. Secretary of Agriculture under which the state plans to monitor and regulate the production of hemp. Maryland established an Industrial Hemp Pilot Program administered, consistent with authorizations under the Farm Bill, and excluded industrial hemp from the definition of “marijuana” under criminal law provisions addressing controlled dangerous substances. House Bill 1123 (passed) alters the pilot program to be the Hemp Research Pilot Program and establishes a regulatory framework for the commercial production of hemp in the State.
In January 2017, the Dairy Pride Act was introduced in the U.S. Congress to require FDA to enforce its definition of milk due to the prevalence of plant-based alternatives being labeled as “milk.” In September 2018, FDA requested public comments on how the administration should address the issue of plant-based liquids and milk labeling. Senate Bill 922 (passed) prohibits a person from stating on a label of a food product that the product is “milk” unless it meets a specified definition. The Maryland Department of Health must establish and implement a plan to enforce this prohibition, including a ban on all products that do not meet the bill’s requirements, including plant-based products mislabeled as milk. The bill is contingent on the enactment of similar legislation in 11 of 14 listed states.
House Bill 1246 (passed) expands the existing qualified plug-in electric vehicle excise tax credit by increasing to $6.0 million the total amount of credits that the Motor Vehicle Administration can award. The bill also extends tax credit eligibility to qualified fuel cell electric vehicles.
To address the delay in starting the Community Solar Energy Generating Systems Pilot Program, Senate Bill 520/House Bill 683 (both passed) extend the Pilot Program through December 31, 2024. A related reporting requirement for Public Service Commission is delayed three years until July 1, 2022. An existing requirement that PSC limit the pilot program in such a way that it may conduct a meaningful study is modified to include annual increasing capacity limits for each program category. The bills also specify that a community solar energy generating system may have an unlimited number of subscribers.
Reflecting some of the work at PSC, Senate Bill 573/House Bill 650 (both passed) require PSC to establish an Energy Storage Pilot Program by June 1, 2019. Under the program, each of the State’s four investor-owned electric companies must request proposals for two energy storage projects and apply for PSC approval. The projects must fit within express regulatory models, which feature varying levels of utility, private sector, and customer involvement.
Senate Bill 517/House Bill 689 (both passed) require PSC to establish residential customer choice shopping websites for electricity and natural gas, each of which must include related information and links to other resources. PSC must also add further educational information related to electric customer choice on its website. It is the intent of the General Assembly that PSC fully implement the bills, revamp the customer education section on its website, and establish the two residential customer choice shopping websites by October 1, 2020.
Following the death of Speaker of the House Michael Busch on April 7, 2019, the General Assembly will reconvene Wednesday, May 1, 2019 at 12:00 p.m. to elect a new Speaker.
Thank you to the Maryland Department of Legislative Services for the information provided above.