Sec. 26.11.27.06. Judicial Review of Penalty Waivers

A. Applicability. The provisions of this regulation govern judicial review of determinations by the Department to reduce or waive penalties for failure to achieve timely compliance with this chapter in accordance with Environment Article, §2-1002(i)(3), Annotated Code of Maryland.

B. Public Notice Requirements.

(1) The Department shall provide public notice of a tentative determination to grant a request for reduction or waiver of penalties made in accordance with Environment Article, §2-1002(i)(2), Annotated Code of Maryland.

(2) The public notice shall:

(a) Be posted on the Department's website;

(b) Published in a newspaper of general circulation in the area in which the affected unit is located at least once a week for 2 consecutive weeks; and

(c) Be sent by first class mail, postage prepaid, or electronic mail to all persons who have requested to be notified about any request for reduction or waiver of penalties submitted to the Department.

(3) The public notice required by this regulation shall include the following information:

(a) The Department's address and the name and telephone number of a contact person for more information;

(b) The name and address of the person requesting a waiver or reduction of penalties;

(c) Identification and address of the affected unit for which the reduction or waiver is requested;

(d) The name, address, and phone number of a person representing the applicant from whom an interested person may obtain additional information;

(e) The location where the following information is available for public inspection:

(i) The complete application for the reduction or waiver of penalties, except for information qualifying as confidential;

(ii) The tentative determination; and

(iii) Other supporting information considered relevant by the Department;

(f) Notice of an opportunity for public comment on the Department's tentative determination for a period of at least 30 calendar days; and

(g) Notice of the public participation procedures and right to judicial review provided by this regulation.

C. Public Comment Period.

(1) The Department shall provide at least 30 days for public comment on a tentative determination to grant a reduction or waiver of penalties during which time any person may submit written comments on the tentative determination.

(2) The Department shall consider all comments that raise issues of law or material fact that are germane to the tentative determination.

D. Final Determination.

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

(a) The Department has received timely and germane written comments that are adverse to the tentative determination; or

(b) The final determination is substantively different from the tentative determination.

(2) If the Department is not required to prepare a final determination under §D(1) of this regulation, the tentative determination becomes the final determination when the request for reduction or waiver of penalties is granted.

(3) Notice of the final determination shall be mailed to each person that submitted comments on the tentative determination.

E. Petition for Judicial Review.

(1) Final determinations to reduce or waive penalties are subject to judicial review by any person who:

(a) Meets standing requirements under federal law; and

(b) Participated in the public comment process through the timely submission of written comments.

(2) Judicial review shall be on the administrative record before the Department and limited to objections raised in written comments received during the public comment period, unless the petitioner demonstrates:

(a) That the objections were not reasonably ascertainable during the comment period; or

(b) That grounds for the objections arose after the comment period.

F. Record for Judicial Review. The record for judicial review of a final determination to grant a request to reduce or waive penalties shall consist of all written comments submitted to the Department during the public comment period, all information considered by the Department in making its final determination, and, in the case of a petition based upon new grounds under §E(2) of this regulation, any information that is relevant and material to the new grounds.