New Judicial Review Procedures for MDE Permits To Take Effect January 1, 2010

Legislation passed by the 2009 General Assembly (http://mlis.state.md.us/2009rs/chapters_noln/Ch_650_sb1065T.pdf) changes procedures for major permits issued by the Department.  The new judicial review procedures take effect on January 1, 2010 and will apply to final permit decisions issued on and after January 1, 2010.  

Under current law, permit applicants and third parties with standing under Maryland law can challenge the issuance of a permit or the conditions of a permit through a request for a “contested case” adjudicatory hearing conducted by the Office of Administrative Hearings. 

Effective January 1, 2010, the “contested case” process no longer applies to final decisions on applications for these permits.  Rather, permits can be challenged through a request for direct judicial review in the Circuit Court for the County where the activity authorized by the permit will occur.  Applicants, and persons who meet standing requirements under federal law and who participated in a public comment process by submitting written or oral comments (where an opportunity for public comment was provided), may seek judicial review.  Judicial review will be based on the administrative record for the permit compiled by the Department and limited to issues raised in the public comment process (unless no public comment process was provided, in which case the review will be limited to issues that are germane to the permit).

These new procedures apply to the following permits:

• Air quality control permits to construct subject to § 2-404 of the Env’t Article
   
• Permits to install, materially alter or materially extend landfills and incinerators for public use subject to 9-209 of the Env’t Article 
   
• Permits to discharge pollutants to waters of the State pursuant to § 9-323 of the Env’t Article
   
• Permits to install, materially alter, materially extend, renew or amend sewage sludge storage or distribution structures pursuant to §§ 9-234.1 or 9-238 of the Env’t Article
   
• Permits issued pursuant to § 7-232 of the Env’t Article to own, operate, establish or maintain a controlled hazardous substance facility
   
• Permits issued pursuant to § 7-103 of the Env’t Article to own, operate or maintain a hazardous materials facility permit
   
• Permits issued pursuant to § 7-233 of the Env’t Article to own, operate, establish or maintain a low-level nuclear waste facility permit
   
• Permits issued pursuant to § 5-502 of the Env’t Article to appropriate or use, or to construct a structure to use, any waters of the State
   
• Permits to construct or repair reservoirs, dams, or waterway obstructions issued pursuant to §§ 5-503 of the Env’t Article
   
• Permits issued pursuant to §§ 5-504 of the Env’t Article to construct or change conduits, pipes, or other devices pertaining to Potomac River
   
• Non-tidal wetlands permits issued pursuant to § 5-906 of the Env’t Article
   
• Permits issued pursuant to § 14-105 of the Env’t Article to drill an oil or gas well and to dispose of well products
   
• Permits issued pursuant to § 14-503 of the Env’t Article to construct an oil or natural gas facility in coastal area
   
• Surface mining permits issued pursuant to § 15-808 of the Env’t Article
   
• Licenses to dredge/fill State wetlands issued pursuant to § 16-202 of the Env’t Article
   
• Private wetlands permits issued pursuant to § 16-307 of the Env’t Article

Public Comment

Existing procedures for soliciting public comment on draft permits or permit applications will remain unchanged, except that where the Department issues a tentative determination on a permit, at that time, the Department will make available to the public for review, the complete permit application, all non-privileged documents upon which the Department relied in making a tentative permit determination, and a privilege log identifying any confidential documents withheld from disclosure.  These documents will be available for review at the Department’s offices located at 1800 Washington Boulevard in Baltimore City upon submission of a request in accordance with the notice of tentative determination.  
 
Public Notice and Comment Procedures

Public notice and comment procedures for permits issued under Titles 2, 7 and 9 of the Environment Article are found in §§ 1-602, 1-603, 1-604 and 1-606 of the Environment Article.  Public notice and comment procedures for permits issued under Title 5, Subtitles 5 and 9, and Titles 14, 15 and 16 of the Environment Article are found in § 5-204 of the Environment Article.

Judicial Review Procedures

Petitions for judicial review of a final determination or permit decision subject to judicial review must be filed in accordance with § 1-605 of the Environment Article no later than 30 days following publication by the Department of a notice of final determination or final permit decision and must be filed in the circuit court of the county where the permit application states that the proposed activity will occur.  Petitions for judicial review must conform to the applicable Maryland Rules of Civil Procedure.