• Department Of Environment to Require Reporting Of Sample Results
  • January 16, 2013 | Authors: Michael C. Powell; Margaret M. Witherup
  • Law Firm: Gordon Feinblatt LLC - Baltimore Office
  • The Maryland Department of the Environment (MDE) has revived proposed regulations that will require real property owners to disclose many (perhaps most) environmental sampling results to MDE. The proposed regulations are intended to implement legislation from 2008 that requires a responsible person who possesses a sample result indicating the release of a hazardous substance to the environment at or above thresholds established by MDE to report the finding “immediately” to MDE.

    MDE originally proposed regulations in 2009, but subsequently withdrew them after receiving significant opposition to its initial draft. MDE intends to publish the new draft regulations in the Spring and finalize them later this year.

    The proposed thresholds for reporting are based on very conservative risk assessment numbers, including some that are lower than naturally occurring background levels, and in many cases will be shown not to pose any significant risk to human health or the environment. The obligation to disclose also may apply retroactively to reports created before the promulgation of the regulations. All properties reported to MDE will be added to the Brownfields Master Inventory List.

    PRACTICE POINTER: In light of the proposed regulations, sellers of real estate should think twice before obtaining copies of Phase II reports because, once received, possessing such a report may trigger an obligation to invite regulatory scrutiny. Sellers should consider including language in sale contracts that provides the seller with the right to request a copy of an environmental report but does not automatically require production until and unless the seller requests the report.

    There is still an opportunity to comment on the draft regulations before they become final.