Md. Code Regs. 26.11.03.12

Current through Register Vol. 51, No. 18, September 6, 2024

Section 26.11.03.12 - Judicial Review

A. Final Decisions. Final decisions of the Department regarding Part 70 permits are subject to judicial review as provided in this regulation. The following decisions are final:

(1) A final decision of the Department regarding a Part 70 permit following a contested case hearing requested by the applicant, as provided in Regulation .11 of this chapter;

(2) Failure of the Department to make a decision regarding a Part 70 permit within the time limits specified in Regulation .13A(3) of this chapter;

(3) A decision to issue a Part 70 permit followed by a petition to the EPA, pursuant to Regulation .10 of this chapter, which has been denied by the EPA;

(4) A decision to issue a Part 70 permit before a petition to the EPA, pursuant to Regulation .10 of this chapter, which has been denied by the EPA;

(5) The adoption of a regulation establishing a general permit, as provided in Regulation .21 of this chapter.

B. Notwithstanding §A of this regulation, a decision by the Department regarding a Part 70 permit is not final if a petition pursuant to Regulation .10 of this chapter is pending before the EPA, if an EPA objection to the permit has not been resolved, or if any other action is pending before the EPA, if the action was initiated with EPA or by EPA not later than 90 days after the Department's decision to issue a permit. A person who is uncertain whether a decision of the Department is not final because action is pending before the EPA shall request the Department to determine whether the action is pending. The Department shall consult with the EPA and respond in writing to a request within 20 days of receiving it.

C. Form of Judicial Review.

(1) A final decision by the Department in a contested case requested by the applicant is subject to judicial review as provided in Environment Article, § 2-607, and State Government Article, § 10-222, Annotated Code of Maryland.

(2) Failure of the Department to make a decision within the time limits specified in Regulation .13A(3) of this chapter, or to reopen a permit as provided in Regulation .20C(3)(c) of this chapter is subject to an action for mandamus or any other action provided by law to compel the Department to make a decision. As provided in COMAR 26.11.02.02 a I, a Part 70 permit may not be considered to be issued because of the failure of the Department to make a decision within a time limit prescribed in this chapter.

(3) The adoption of a regulation establishing a general permit is subject to judicial review as provided in State Government Article, § 10-125, Annotated Code of Maryland.

(4) Final decisions to issue Part 70 permits, as provided in §A(3) and (4) of this regulation, are subject to an action for judicial review brought by any person other than the applicant, as provided in the Maryland Environmental Standing Act (MESA), Natural Resources Article, § 1-501 et seq., Annotated Code of Maryland.

D. Time Limit for and Scope of Judicial Review.

(1) As provided in Maryland Rule §7-203, appeal of a contested case decision regarding a Part 70 permit shall be filed not later than 30 days after the final decision of the Department.

(2) A judicial action to compel the Department to make a decision regarding a Part 70 permit shall be filed before the Department makes a final decision to issue or deny the permit.

(3) As provided for at 40 CFR § 70.4(b)(3)(xii), and except as provided in §D(4) of this regulation, an action for judicial review of a decision regarding a Part 70 permit that is not subject to §D(1) or (2) of this regulation shall be filed not later than 90 days after the decision of the Department is final.

(4) An action for judicial review under §D(3) of this regulation may be filed later than 90 days after a final decision of the Department if the action is based solely on grounds arising later than 90 days after the final decision. This action shall be filed not later than 90 days after the new grounds for review arise and is limited to the new grounds.

(5) An action for judicial review under §D(3) of this regulation is limited to issues that are germane and material to the Part 70 permit and that were raised by or on behalf of the person seeking review in written or oral comments made during the time for making comments, except if the person seeking review was not afforded an opportunity to comment on the draft permit.

E. Record for Judicial Review.

(1) For cases involving judicial review of a final decision regarding a Part 70 permit in a case that is a contested case, the record for judicial review shall be compiled in accordance with COMAR 28.02.01 and other law that pertains to contested cases.

(2) For cases involving judicial review of the final decision regarding a Part 70 permit in a case that is not a contested case, the record for judicial review shall consist of those records and other significant information considered by the Department when it decided whether to issue or deny the permit or, for the cases in which it is alleged that the Department has failed to make a timely decision, the information before the Department regarding the pending application. Except in cases that are based on new grounds provided for in §D(4) of this regulation, the record also consists of all comments and information submitted to the Department during the period to consider the permit. In cases that arise because of new grounds, the record includes the new grounds.

Md. Code Regs. 26.11.03.12

Regulation .12D amended effective November 11, 2002 (29:22 Md. R. 1724)