November 2009

MDE to Hold Public Workshop on Proposed Hazardous Substance Notification Regulations

The Maryland Department of the Environment has announced that it will hold a public workshop on November 10, 2009 at 10:00 a.m. at MDE's headquarters located at 1800 Washington Boulevard, Baltimore. MDE intends to discuss the proposed controlled hazardous substance notification regulations published in the Maryland Register on October 23, 2009. These regulations, required by a state law passed in the spring of 2008, would require certain land owners and others to inform the MDE of the known presence of controlled hazardous substances above certain threshold levels on properties throughout Maryland. The proposed regulations were published in the Maryland Register on October 23, 2009 . Additional information on the proposed regulations is available on the MDE website.

The MDE is accepting public comment on the proposed regulations through November 23, 2009. MDE will then publish final regulations in the coming months, but the requirements for reporting the presence of these controlled hazardous substances will be retroactive.

This upcoming workshop is not a formal public hearing on the proposed regulations, but rather an informational meeting where the agency is apparently seeking to educate the regulated community. Rich and Henderson will be represented at the workshop. Please don’t hesitate to contact Tim Henderson at 410-267-5900 or email about how these regulations may impact you and your business.

June 2009

President Obama Signs Executive Order Regarding Chesapeake Bay Protection and Restoration

On May 12, 2009, President Barack Obama issued an Executive Order intended to help protect and restore the health, heritage, natural resources and social and economic value of the Chesapeake Bay. The Executive Order states that despite significant efforts by Federal, State and local governments and other interested parties, water pollution in the Chesapeake Bay prevents the attainment of existing State water quality standards and the “fishable and swimmable” goals of the Clean Water Act.

The Order, titled ‘Chesapeake Bay Protection and Restoration’, establishes a Federal Leadership Committee to oversee the development and coordination of programs and activities of agencies participating in the protection and restoration of the Chesapeake Bay. The Committee will be chaired by the Administrator of the Environmental Protection Agency and will include senior representatives from the Departments of Agriculture, Commerce, Defense, Homeland Security, the Interior, Transportation and such other agencies as determined by the Committee. The Order grants the EPA enforcement authority if states miss established goals signaling a far greater federal role in the bay cleanup.

The Committee is to consult extensively with Virginia, Maryland, Pennsylvania, West Virginia, New York, Delaware and the District of Columbia. The goal of this consultation is to ensure that Federal actions to protect and restore the Chesapeake Bay are closely coordinated with actions by State and local agencies in the watershed and that the resources, authorities, and expertise of Federal, State and local agencies are used as efficiently as possible for the benefit of the Chesapeake Bay's water quality and ecosystem and habitat health and viability.

The Order is intended to remedy past policy decisions at the State and local levels which allowed goals to be met too far in the future, permitting elected officials to make commitments that would come due long after they left office. Through the Order, the EPA will mandate more stringent cleanup goals than politically sensitive state officials could publicly embrace.

By November 12, 2009, the agencies within the Committee must submit reports on the key challenges to protecting and restoring the Chesapeake Bay. These reports will include recommendations for accomplishing such tasks as: targeting resources to better protect the Chesapeake Bay, strengthening storm water management practices within the Chesapeake Bay watershed and developing storm water best practices guidance, assessing the impacts of a changing climate on the Chesapeake Bay, expanding public access to waters and open spaces, developing focused and coordinated habitat and research activities that protect and restore the living resources and water quality of the Chesapeake Bay.

Beginning in 2010, the Federal Leadership Committee will review the agency reports and publish the first annual Chesapeake Bay Action Plan describing how Federal funding proposed in the President's Budget will be used to protect and restore the Chesapeake Bay during the upcoming fiscal year.

The Order could lead to new requirements for upgrading sewage treatment plants and other utilities and limits on developers, farmers and homeowners who fertilize their fields and lawns with nutrients that seep into the bay.

Exactly how this Order and the actions it requires impacts the environment, state and local governments, individuals and businesses in the Bay’s watershed has yet to be seen. Rich and Henderson will continue to monitor the issue and will report on any new developments.

For more information, please contact Trent Zivkovich.

June 2009

New Environmental Standing Law in Maryland

On May 19, 2009, Governor Martin O’Malley signed legislation amending the Maryland Code which dramatically alters the review of Maryland decisions to issue, deny, renew or revise certain environmental permits.

The new legislation does away with the contested case hearings process that has been in place since 1993. Instead, the law now allows individual parties or associations to request judicial review of decisions at the Circuit Court level. The review is limited to an administrative record and objections raised during the public comment period, with limited exceptions.

Prior to the amendment, the opportunity to request review of certain permit decisions was limited to applicants and participants in public hearings with real property interests directly affected by the permit. Beginning January 2010, House Bill 1569 and Senate Bill 1065, which amend section1-601 et seq. of the Environmental Article of the Annotated Code of Maryland, modify the process by greatly expanding who can challenge decisions made by the Maryland Department of the Environment and transferring those challenges to review at the Circuit Court level. The new law, in effect, adopts the more lenient federal rule of standing which in addition to the applicant, allows citizens and other interested parties, including nonprofit associations, to request judicial review of permitting decisions.

The expanded standing requirement allows any party that, “participated in a public participation process through the submission of written or oral comments” to request a judicial review of the decision as long as the party can show they are aggrieved by the decision, that the decision is inconsistent with the law, or that material facts exist that are contrary to the decision.

For a proceeding involving a variance for a development activity in the Chesapeake and Atlantic Coastal Bays Critical Area buffer, a person who meets federal standing requirements may participate as a party in a local administrative proceeding involving the variance. A person who meets this requirement may also (1) participate as a party in an administrative proceeding at a board of appeals even if the person was not a party to the original administrative proceeding; and (2) petition for judicial review and participate as a party even if the person was not a party to the action which is the subject of the petition. These provisions only apply to a variance application filed with a local Critical Area program on or after the bill’s January 1, 2010 effective date.

Parties seeking to challenge an MDE permitting decision also have an extended period in which to request a judicial review of the decision under the new law. Formerly, parties had 15 days from the date of the publication of the notice of final determination to request a contested case hearing, that period has been extended to 30 days.

For more information please contact Tim Henderson.

May 2009

Attorneys Persuade Court to Strike Down Application of Provisions of the Critical Area Act

On May 26, 2009, attorneys with Rich and Henderson, P.C. and the Law Office of Robert Fuoco, jointly and successfully argued that provisions of the Critical Area Act amended in 2008 could not be applied retroactively. As a result, the Circuit Court for Anne Arundel County dismissed an action filed against the owner of a two-acre island located in the Magothy River known as Little Island.

The case had its genesis when the owner of the island developed the island around 2001 without obtaining the necessary Critical Area permits or variances. Subsequently, in 2004, the owner filed requests for specific variances to the Critical Area Program, in effect "after the fact" variances. Those variances for the development of the island were granted by the Anne Arundel County Board of Appeals in 2007.

In 2008, the Maryland Legislature imposed new requirements on applicants for "after the fact" Critical Area variances, now set out in title 8, subtitle 18 of the Natural Resources Article. The 2008 Act prohibited a county board of appeals from issuing any such Critical Area variances unless certain conditions precedent were satisfied, including the local government taking enforcement action and the applicant for the variance preparing and implementing a restoration or mitigation plan.

The issue before the Court in this case was whether the 2008 Act could be applied retroactively, in a Court proceeding brought by the Critical Area Commission, to the after the fact variances granted in 2007; that is, whether the new conditions precedent, including enforcement action and a restoration plan, could be required in this particular case.

The Court agreed with our attorneys representing the property owner and arguing that the law could not be applied retroactively. The Court concluded that the 2008 legislative changes affected only the procedure used to enforce rights to an after the fact variance and not substantive rights to those variances. As a result the Court held that the 2008 statute, which took effect on July 1st of that year, could not be applied retroactively to after the fact variances granted before the effective date of the Act. Our attorneys also raised various constitutional arguments against retroactive enforcement, which the Court did not need to address in light of its statutory interpretation of the 2008 legislation. While the Act may be applied prospectively, property owners, and local county boards of appeal should be aware of the fact that the 2008 amendments regarding after the fact variances should not be applied retroactively.

For more information please contact James Doyle at 410-267-5900 or jdoyle@richlaw.com.

March 2009

Anthony G. Gorski and Jeffrey W. Moore Join Rich and Henderson, P.C.

Rich and Henderson is pleased to announce that Anthony Gorski, an established and respected leader in Maryland's environmental and administrative law community has joined the firm as a Partner. Tony holds both a J.D. and Master of Environmental Law, cum laude, from Vermont Law School. Prior to joining Rich and Henderson, he represented the Maryland Department of the Environment's solid waste, oil control, water pollution and hazardous waste programs as an Assistant Attorney General from 1991 to 1997. He has spent nearly two decades providing advice and counsel to private parties and local governments on environmental, natural resources, land use and administrative law issues including compliance, Critical Area and wetlands regulation, hazardous and solid waste management, brownfields and the Maryland Voluntary Cleanup Program, environmental permitting and related litigation and general land use law including planning, annexation, rezoning, and water and sewer capacity allocation. He is admitted to practice law in Maryland and before the U. S. District Court for the District of Maryland and the U. S. Court of Appeals for the Fourth Circuit. He is a member of the Maryland State Bar Association, Anne Arundel County Bar Association and Queen Anne's County Bar Association

In addition, the firm is pleased to announce that Jeff Moore, an experienced engineer, environmental consultant and businessman has joined the firm as an Associate. Jeff practices in the areas of business, real estate, land use, environmental, energy and administrative law and brings almost twenty five years of business experience to the firm. He has owned and operated businesses, designed and implemented solutions to legal and technical problems throughout the United States, negotiated on behalf of clients and supported his clients in litigation in state and federal courts. Jeff is a licensed professional engineer and geologist and a recognized author of both legal and technical articles in the topics of energy and environmental law and environmental remediation. Jeff received a B.A. in Environmental Sciences from the University of Virginia in 1982, a B.S. in Geology from the Virginia Polytechnic Institute and State University in 1984, an M.S. in Environmental Engineering from the Virginia Polytechnic Institute and State University in 1989 and a J.D. from The George Washington University Law School in 2008. He is admitted to practice law in Maryland.

February 2009

Federal Government Releases $23 Million for Chesapeake Bay Watershed Initiative

Just days before the Bush administration left office, the U.S. Department of Agriculture (USDA) released $23 million dollars under the Chesapeake Bay Watershed Initiative to help farmers in the watershed take action to control erosion and nutrient runoff. The allocation is one of the largest single federal investments in the Chesapeake Bay clean-up effort and an unprecedented targeting of Farm Bill resources to a specific watershed.

The funds are the first of a four-year, $188 million dollar commitment made in the 2008 Farm Bill to support agricultural conservation practices such as nutrient management, cover crops, crop residue management and vegetative buffers. These practices are aimed at improving water quality, preserving and enhancing natural resources, and reducing the amount of pollutants flowing into the streams, creeks and rivers that feed Chesapeake Bay.

Under the new voluntary initiative, eligible private farmland owners will receive technical and financial assistance to address wetland, wildlife habitat, soil, water and related concerns. Also, landowners will be assisted with planning, designing, implementing and evaluating habitat conservation and restoration.

The Chesapeake Bay Watershed Initiative is to receive $43 million in 2010, $72 million in 2011 and $50 million in 2012. The funds are to be allocated by the USDA's Natural Resources Conservation Service to the six states in the Bay watershed based on eleven key criteria, including the amount of farms, pasture land and livestock in each state. The specific amounts to be distributed to each state are:

Delaware: $1,278,263
Maryland: $5,143,305
New York: $1,403,356
Pennsylvania: $6,747,749
Virginia: $6,976,161
West Virginia: $1,451,165

For more information on how you or your company may access these funds, please contact Trent Zivkovich at 410-267-5900 or tzivkovich@richlaw.com.

January 2009

Firm Attorneys to Present at National Conference Highlighting Current Opportunities in Mergers & Acquisitions

Tim Henderson and Jeff Moore will present a seminar entitled, “New Developments in Environmental Due Diligence” at the Mid-Market March Madness Conference on March 18th in Atlanta, Georgia. This conference, now in its 9th year, aims to provide up-to-date information to middle- market executives, lenders and advisors interested in educating themselves about the current environment for mergers and acquisitions, buyouts and turnaround opportunities. The agenda for the conference may be found here.

January 2009

Firm's Tim Henderson Presents Seminar at National Real Estate Law Conference

Managing Partner Tim Henderson presented a seminar entitled "Institutional Controls, Deed Restrictions, Restrictive Covenants and the Uniform Environmental Covenants Act" at the National CLE Conference for Real Estate Law in Vail, Colorado. Materials from his presentation may be found here. For more information regarding the subject, please contact Tim at 410-267-5900 or thenderson@richlaw.com.

December 2008

Rich and Henderson wins Against the Maryland Department of the Environment

In a ruling that has broad implications for legislation passed by the General Assembly, the Circuit Court for Baltimore City agreed with Days Cove Reclamation Company and its counsel, Rich and Henderson, and found that a law enacted in 2007 violated the Maryland Constitution. In so doing, the Court breathed new life into that provision of the Maryland Constitution that invalidates "special laws" and pushed back against inappropriate legislation targeting a specific party.

The case stems from an effort by Days Cove to obtain a rubble landfill permit within four miles of an area known as Unicorn Lake in Queen Anne's County. After years of legal angling in which the local county attempted through various means to prevent the construction of a rubble landfill near the lake, the County successfully persuaded the Maryland General Assembly to enact legislation that outlawed the issuance of a rubble landfill permit within four miles of Unicorn Lake. Rich and Henderson, on behalf of Days Cove, immediately challenged this legislation on various grounds, including that it was a special law in violation of the Maryland Constitution.

In its favorable ruling, the Court pointed to various considerations and factors in determining whether legislation constitutes a special law. The Court noted that the law implicitly identified the Plaintiff. Although Days Cove was not specifically named in the legislation, legislative sponsors noted that it was intended to stop a rubble landfill within four miles of Unicorn Lake, the fact that the Court noted could only identify Days Cove since it was the only entity proceeding through the MDE permit process to accomplish that goal. Thus, the Court concluded that Days Cove was the only entity discriminated by the legislation. Moreover, the Court also relied on the fact that the County had, after Days Cove sought its MDE permit, amended its zoning ordinance prohibiting a rubble landfill as a conditional use anywhere in the county. The Court agreed with Rich and Henderson by finding the County's action, together with the state legislation, created a class of one- Days Cove Reclamation Company.

The Attorney General's office has filed an appeal in this case on behalf of MDE and as such, the question of whether this legislation constitutes, as found by the Circuit Court, a special law will be decided in the appellant courts.

For more information on this matter or how Rich and Henderson may assist your business or interest facing a similar situation, please contact Jim Doyle at 410-267-5900 or jdoyle@richlaw.com.

November 2008

Principal Counsel to MDE Outlines Enhanced Enforcement Measures

In a recent discussion with members of the Maryland State Bar Association's Environmental Law Section the new Principal Counsel to the Maryland Department of the Environment (MDE), Steven Johnson, outlined several new initiatives and priorities that may have a significant impact on Maryland's regulated business community. Citing the priorities of Attorney General Douglas Gansler, Johnson stated that the Office of the Attorney General will be more aggressive in prosecuting alleged violations of the State's environmental laws and will seek to establish new legal precedents that will expand the State and public's ability to act in response to perceived violations. Johnson directs the Assistant Attorneys General assigned to the MDE that prosecute alleged violations referred to them by the agency's regulatory personnel.

Johnson has directed his office to seek more aggressive action in two ways; by filing civil lawsuits and seeking higher penalties. He has directed his staff to recommend to the MDE that the agency should file civil suits in court rather than bringing actions through administrative hearings. In addition, he has directed that his staff seek penalties based on the maximum amounts allowed by law, stating that a party's ability to pay penalties was not a primary concern. Furthermore, he hopes to establish legal precedent in State courts with regards to what civil penalties are deemed reasonable, including capturing environmental restorations costs.

Another item of interest was Johnson's stated support for pending legislative efforts aimed at expanding third-party standing in state courts. This proposed legislation, anticipated for introduction in the 2009 General Assembly session in Annapolis, would likely allow citizen suits under state environmental law and enable private parties to seek enforcement as a 'private Attorneys General'. Currently, only third parties directly impacted by an issue, usually through property ownership, have standing to join a civil lawsuit as a party. An expansion in third-party standing would allow the public at large as well as environmental advocacy groups to join in certain actions, increasing the potential cost of defending claims.

Taken together, these issues all point to a State government that will take more aggressive action to prosecute and recover monetary damages from those alleged to have violated environmental laws. How these issues are implemented on a routine basis has yet to be seen, especially in light of the State's recent budgetary concerns, but record settlements have recently been obtained from highly visible parties, including $4.0 million from Exxon Mobil Corporation for a gasoline spill in Baltimore County and $1.0 million from Constellation Power Source Generation for groundwater impacts associated with the placement of fly ash in Anne Arundel County.

For further information and how these issues may potentially impact your business, please contact Tim Henderson at 410-267-5900 or thenderson@richlaw.com.

August 2008

A Platform to Fines [PDF]

By Zhen Zhang
This article originally appeared in the August 15, 2008, edition of the Bar Bulletin and is reprinted with permission of the Maryland State Bar Association.

May/June 2008

EVER EXPANDING REACH OF CRITICAL AREA COMMISSION [PDF]

By James J. Doyle, III and Timothy R. Henderson
May/June 2008, Reproduced with permission from MSBA

April 2008

Critical Area Law Developments

House Bill 1253 changed the Critical Area Law. The law has passed in the House and Senate and was signed into law by the Governor on April 24, 2008.The law is set to become effective on July 1, 2008.

Highlights of changes:

• Increase in lot coverage is presumed to be contrary to the purpose of the Critical Area Act. Lot coverage may not exceed 15% unless the lot is less than an acre. If you have a building permit before July 1, 2008 and initiate construction and inspection before July 1, 2009, then the new limitations do not apply.

• The Resource Conservation Area (RCA), the Intense Development Area (IDA) and the Limited Development Area (LDA) are now specifically defined. For example, RCA is nature dominated land, where housing density must be less than one unit per five acres.

• In the RCA, the buffer has changed from 100 feet to 200 feet. For IDA and LDA the buffer remains 100 feet.

• The 200 feet buffer can be reduced based on hardship conditions. A property owner may be exempt from the 200 feet buffer if the application for subdivision or site plan approval is submitted before July 1, 2008 and recorded by July 1, 2010, and if Growth Allocation is not involved.

• Variances are permitted, but must be evaluated according to the criteria in the law. Local jurisdictions may use different standards that are in the law, but they must be approved by the Critical Area Commission. The Commission now has 130 days to act on local program amendments instead of 90. The Commission also has power to amend the criteria if the local government criteria is deemed inappropriate.

• New minimum criteria for map amendments for new IDA include public sewer and an average density of 3.5 units/acre.

• Criminal penalties have been added, but cannot apply to violations that existed before July 1, 2008.

September 2007

$ 1.9 MILLION AWARD IN EMINENT DOMAIN CASE.
SHA must pay double for its offer for Route 50 land, September 17, 2007, Daily Record.

March 2005

ENDANGERED SPECIES AND DEVELOPMENT LAWS
By James J. Doyle, III and Timothy R. Henderson
March 2005, Reproduced with permission from MSBA