Md. Code Regs. 26.13.07.20-1

Current through Register Vol. 51, No. 11, May 31, 2024

Section 26.13.07.20-1 - Administrative Procedures-Tentative and Final Determinations

A. Tentative Determinations and Draft Permits.

(1) Once an application is complete, the Secretary shall prepare a tentative determination that includes the following information:

(a) A proposal to issue or to not issue the permit;

(b) Any proposed permit limitations and conditions;

(c) A brief explanation of the Department's tentative determination;

(d) Any proposed schedule of compliance; and

(e) If the tentative determination is to issue a permit, a draft permit.

(2) Notice of Intent to Deny.

(a) If the Secretary tentatively decides to deny the permit application, the Secretary shall issue a notice of intent to deny, which is a type of draft permit.

(b) A notice of intent to deny is subject to the same procedures as any draft permit prepared under this section.

(c) If the Secretary's final decision is that the tentative decision to deny the permit application was incorrect, the Secretary shall withdraw the notice of intent to deny and proceed to prepare a draft permit under §A(3) of this regulation.

(3) If the Secretary decides to prepare a draft permit, the Secretary shall prepare a draft permit that contains the information described in Regulations .04, .05, .07, .08, .15, and .16 of this chapter.

(4) Draft Permits-General.

(a) All draft permits shall be:

(i) Accompanied by a statement of basis or fact sheet, as required by §§B and C of this regulation;

(ii) Based on the administrative record, as required by §D of this regulation;

(iii) Publicly noticed, as required by Regulation .20-2 of this chapter; and

(iv) Made available for public comment, as required by Regulation .20-4A of this chapter.

(b) The Secretary shall:

(i) Give notice of opportunity for the public hearing, as required by Regulation .20-5A of this chapter;

(ii) Issue a final decision, as required by Regulation .20-6 of this chapter; and

(iii) Respond to comments, as required by Regulation .20-4D of this chapter.

(c) An appeal of the final decision may be made in accordance with Maryland Administrative Procedure Act, State Government Article, § 10-201 et seq., Annotated Code of Maryland, by following the procedures in Regulation .20-6C(3) of this chapter.

(5) The Department shall publish a notice of the tentative determination that allows at least:

(a) 30 days before the Department holds a public hearing under Regulation .20-5A of this chapter; and

(b) 45 days before the Department:

(i) Issues a final determination under §E of this regulation; or

(ii) Makes a final decision to issue or deny a permit, if a final determination is not required under §E(1) of this regulation.

B. Statement of Basis. The Secretary shall:

(1) Prepare a statement of basis for every draft permit for which a fact sheet under §C of this regulation is not prepared;

(2) Briefly describe in the statement of basis the derivation of the conditions of the draft permit and the reasons for them, or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision; and

(3) Send the statement of basis to the applicant and, on request, to any other person.

C. Fact Sheet. The Secretary shall:

(1) Prepare a fact sheet for every:

(a) Draft permit for a major hazardous waste management facility; and

(b) Permit that the Secretary finds is the subject of widespread public interest or raises major issues;

(2) Briefly set forth in the fact sheet the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit;

(3) Send this fact sheet to the applicant and, on request, to any other person; and

(4) Include in the fact sheet, when applicable:

(a) A brief description of the type of facility or activity which is the subject of the draft permit;

(b) The type and quantity of wastes, fluids, or pollutants which are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged;

(c) A brief summary of the basis for the draft permit conditions, including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record required by §D of this regulation;

(d) Reasons why any requested variances or alternatives to required standards do or do not appear justified;

(e) A description of the procedures for reaching a final decision on the draft permit, including:

(i) The beginning and ending dates of the comment period under Regulation .20-2 of this chapter, and the address where comments will be received;

(ii) Procedures for requesting a hearing and the nature of that hearing; and

(iii) Any other procedures by which the public may participate in the final decision; and

(f) The name and telephone number of a person to contact for additional information.

D. Administrative Record for Draft Permits.

(1) The provisions of a draft permit prepared by the Department under §A of this regulation shall be based on the administrative record defined in this regulation.

(2) For preparing a draft permit under §A of this regulation, the record shall consist of:

(a) The application, if required, and any supporting data furnished by the applicant;

(b) The draft permit or notice of intent to deny the application or to terminate the permit;

(c) The statement of basis or fact sheet;

(d) All documents cited in the statement of basis or fact sheet; and

(e) Other documents contained in the supporting file on the draft permit.

(3) Material readily available at the Department or published material that is generally available, and that is included in the administrative record under §D(2) of this regulation, need not be physically included with the rest of the record as long as it is specifically referred to in the statement of basis or the fact sheet.

(4) This section applies to all draft permits for which public notice was given after January 31, 1983.

(5) The Department shall assure that, except for materials that have been designated confidential business information, the administrative record for a draft permit is available to the public for inspection and copying.

E. Final Determination.

(1) The Department shall prepare a final determination if:

(a) Written comments adverse to the tentative determination were received by the Department within 45 days after the publication of the notice of tentative determination;

(b) Comments adverse to the tentative determination were received in writing at, or within 5 days after, the public hearing held under Regulation .20-5A of this chapter;

(c) Comments adverse to the tentative determination were received orally at the public hearing held under Regulation .20-5A of this chapter; or

(d) The final determination is substantively different from the tentative determination and all persons aggrieved by the final determination have not waived, in writing, their right to request a contested case hearing.

(2) If the Department is required to prepare a final determination under §E(1) of this regulation, the Department shall publish a notice of the final determination.

(3) If the Department is not required to prepare a final determination under §E(1) of this regulation, the tentative determination is a final decision by the Department when the permit is issued or denied.

Md. Code Regs. 26.13.07.20-1