Controlled Hazardous Substances Reporting

The Maryland Department of the Environment (MDE) expects to finalize the Controlled Hazardous Substance (CHS) Notification Regulations in 2013.  These Regulations have been in the works since 2009 and will require notification be sent to MDE of any sample result exceeding the appropriate screening value.

In 2008 the Controlled Hazardous Substance Act was changed to require responsible persons who have evidence of a release of a controlled hazardous substance (CHS) into the environment to notify the Maryland Department of the Environment (MDE).  Section 7-222(d) of the Environmental Article states:

(1)   On or after October 1, 2009, a responsible person that possesses a sample result or other environmental assessment that indicates the release of a hazardous substance into the environment, at or above a threshold established in accordance with paragraph (2) of this subsection, shall report the finding immediately to the Department.” 

(2)   In determining a reportable threshold of a release of a hazardous substance, the Department shall consider:

(i) The quantity of a hazardous substance;
(ii) The associated risk factors of a hazardous substance; and
(iii) Any other factor determined necessary by the Department.

(3)   On or before June 30, 2009, the Department shall adopt regulations to implement the provisions of this subsection.

On October 23, 2009 the MDE published proposed regulations outlining the procedures that must be followed and the information that must be submitted as part of the CHS reporting requirement.  A number of questions regarding the proposed regulation were raised.  MDE later withdrew the proposed regulation to take into consideration the questions and comments.  MDE released revised proposed regulations in late 2012.  A few of the questions on the 2009 proposed regulation with current answers are summarized below:

  1. Who is a “responsible person?”  Although the legal definition of a responsible person is somewhat complex, generally speaking a responsible person is the current owner or operator or was the owner or operator at the time of a release.  The current draft of the notification form doesn’t require the person making the report to certify they are a responsible person.  So, anyone can submit a notification.
  2. What does “possesses a sample result or other environmental assessment” mean?  The short answer is that it means just that.  However, you can be “in possession” in February 2013 of a test result performed in 1993 that may meet the reporting criteria.  But, only results that exceed the screening criteria need to be reported.
  3. When must notifications be submitted to the MDE?  The statute says the responsible party “…shall report the finding immediately to the Department.”  MDE has indicated that notification of discovery of a release must be submitted within 15 days of discovery.
  4. How quickly will MDE respond to the notification?  MDE has indicated that they will issue an acknowledgment letter within two day of receipt of notification and will provide their determination within 45 days.

While we are expecting the CHS Notification Regulation to be finalized in 2013, MDE is currently excepting voluntary release notification utilizing the current draft of the notification form.