Green Building in the 2010 Maryland General Assembly Session
At midnight on April 12, 2010, the Maryland General Assembly ended its 427th session with 810 bills having been approved of the 2,700 bills introduced. Only a very modest number of those bills advance green building or sustainable development.
Despite only nascent interest by state elected leaders in 2010 in embracing any green building issues, savvy businesses will find opportunities to lead and profit in matters of energy savings, improved indoor air quality, water efficiency and stewardship of resources, including opportunities advantaged by the new laws that were enacted.
This compilation is a bill by bill review of green building legislation passed by the state legislature in 2010. The determination of what is a green building bill is, admittedly, subjective and for the purposes of this exercise a wide net was cast.
Under the Maryland Constitution, the Governor has the option of signing, vetoing, or letting legislation become law without his signature. Governor Martin O’Malley signed three bills into law at the first bill signing on March 25 and on April 13, the Governor held the traditional sine die bill signing, which resulted in an additional 170 enacted bills. Two additional bill signings are scheduled after this article is published on May 4 and May 20.
State Green Building and Purchasing
The Maryland High Performance Building Act of 2008 requires that most new or renovated State buildings and new school buildings meet or exceed either the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) standard for a Silver rating or a comparable rating according to a nationally recognized, accepted, and appropriate standard approved by the Department of Budget and Management and the Department of General Services. As of 2010, only the LEED green building standard is recognized under the Act. Senate Bill 234/House Bill 1044 (both passed) require that community college capital projects that receive State funds comply with the State’s High Performance Building Act (i.e., achieve at least a LEED Silver certification). The bills allow community colleges to apply for and receive a waiver from this requirement under the Act’s existing procedures. The requirement applies prospectively to community college capital projects that have not initiated a request for proposals for the selection of an architectural and engineering consultant on or before July 1, 2011.
Senate Bill 693/House Bill 1164 (both passed) promote the use of environmentally preferable purchasing throughout State government through a variety of study and reporting requirements and the establishment of the Maryland Green Purchasing Committee. The committee must provide information and assistance regarding environmentally preferable purchasing to State agencies by, among other things, developing and implementing a strategy that may include statewide policies, guidelines, programs, and regulations, and developing a “best practices” manual. The bill also requires DGS to study and report on the use of compost as a fertilizer on State property and establishes a goal for DGS to compost all landscape waste on State property that it operates. The percentage of paper purchased by DGS that must be recycled increases from 40% to 90%.
The National Standard Plumbing Code (NSPC) defines greywater as water that has been used for washing dishes, laundering clothes, or bathing. Under that definition, essentially any water, including storm water, other than toilet wastes, draining from a building is greywater and suitable for reuse as nonpotable water. Reusing greywater serves several purposes: it reduces the amount of freshwater needed to supply a building, it reduces the amount of wastewater entering sewer or septic systems, and it provides an alternative for stormwater management. NSPC specifies how systems must be designed, installed, and maintained to prevent contamination of the potable water supply. House Bill 224 (Ch. 137) specifies that a county may not adopt or enforce a provision of a local plumbing code that prohibits a greywater recycling system. The bill defines “greywater” as storm water, used untreated water generated by washing machines, showers, and bathtubs. The bill specifies that greywater does not include water from toilets, kitchen sinks, or dishwashers.
Senate Bill 224 (passed) prohibits any contract, deed, covenant, lease, or other similar residential governing document from banning the installation or use of clotheslines on the property of a homeowner or tenant. The bill applies to any single-family residential dwelling or townhome, including condominiums, homeowners associations, and housing cooperatives. The bill’s provisions do not apply, however, to a property with more than four dwelling units or to a restriction concerning the installation or use of clotheslines on specified historic properties. The bill, however, permits reasonable restrictions relating to aesthetic considerations and the placement of clotheslines for safety purposes in the event of emergencies.
Incentives for Greening
Established in 1996, the Heritage Structure Rehabilitation Tax Credit provides, subject to certain limitations, a credit for a portion of the qualified expenditures for rehabilitating a certified historic structure. In 2004, the General Assembly substantially altered the tax credit, including converting the commercial credit part of the program from a traditional tax credit program to a tax credit program that is subject to an annual budgetary appropriation with an aggregate limit. Under current law, the credit is scheduled to expire as of July 1, 2010. House Bill 475 (passed) is an Administration bill that reestablishes the Heritage Structure Rehabilitation Tax Credit Program as the Sustainable Communities Tax Credit Program, extends the program’s termination date through fiscal 2014, and alters eligibility requirements for the program. Among the complex array of incentive based activity, a commercial building owner may claim a tax credit in an amount equal to 25% of the qualified rehabilitation expenditures if the rehabilitation is a certified historic structure and meets or exceeds a Gold rating under the appropriate current LEED standard (versus that tax credit is limited to 10% if the rehabilitation is not so LEED Gold certified).
House Bill 464 (passed) extends the termination date of the clean energy incentive tax credit to December 31, 2015. The Maryland Energy Administration may issue a total of $25 million in credits to qualified energy resources, with the amount of an individual credit tied to energy produced or purchased annually by an applicant. The bill also extends to January 1, 2016, the date by which a facility must begin producing qualified energy in order to claim the credit.
House Bill 469 (passed) establishes a tax credit against the motor vehicle titling tax (for the purchase or lease of an on the road vehicle) in an amount equal to 100% of the tax imposed for the purchase of qualified plug-in electric vehicles, not to exceed $2,000. The credit is limited to 1 vehicle per individual and 10 vehicles per business entity. The credit is available for the purchase of a qualifying vehicle between October 1, 2010, and June 30, 2013.
Senate Bill 602 /House Bill 674 (both passed) authorize a plug-in vehicle affixed with a State permit designating it as such to use high occupancy vehicle (HOV) lanes. A plug-in vehicle is defined in the bills as a motor vehicle that, among the requirements, “is propelled to a significant extent by an electric motor that draws electricity” from a rechargeable battery. A plug-in vehicle that obtains a specified permit may use each HOV lane designated by SHA, regardless of the number of passengers in the vehicle. SHA is authorized to limit the number of permits issued. The bills will remain in effect for three years and, unless extended by future legislation, will terminate at the end of September 2013.
Prince George’s County
Solar hot water is one of the most cost-effective ways to incorporate renewable technologies into a building and that a typical residential solar hot water system reduces the need for conventional water heating by about two-thirds. The Task Force on Solar Hot Water Systems, created by Senate Bill 1067 (passed), will study the development of a business plan to achieve substantial use of solar hot water systems in a way that saves money for Prince George’s County residents and businesses and that reduces carbon emissions. The task force will include among its membership one senator and one delegate who each represents the county.
House Bill 576 (passed) establishes an expedited approval process in Prince George’s County of applications for development permits for qualifying redevelopment projects, so as to encourage environmentally responsible urban renewal and revitalization. Prince George’s County is generally required to approve or disapprove applications for development permits for qualifying redevelopment projects and to provide applicants with written notice of the approval or disapproval within 90 days of receiving the application except under specified circumstances. A qualifying redevelopment project is defined as a development project to rehabilitate dilapidated real property through demolition, reconstruction, or reuse that incorporates specified environmentally responsible design elements.
Numerous “pay-as-you-throw” programs have been implemented nationwide, with the intent of increasing recycling in affected communities. House Bill 678 (passed) authorizes Frederick County to establish a pay-as-you-throw pilot program. Under the program, a solid waste hauler charges a residential customer a fee for the curbside collection of solid waste based on the volume of waste collected. A municipality may participate in the program only with approval of the governing body of the municipality.
Senate Bill 925/House Bill 1112 (both passed) expand the existing non-residential Carroll County green building tax credit to include all property, including residential property, on which a person installs environmentally friendly or “green” technologies. Environmentally friendly technologies include conserving water, incorporating recycled or recyclable materials, and incorporating renewable and energy efficient power generation.
Maryland’s Renewable Energy Portfolio Standard (RPS) was established in 2004 in order to recognize the economic, environmental, fuel diversity, and security benefits of renewable energy resources; establish a market for electricity from those resources in Maryland; and lower consumers’ cost for electricity generated from renewable sources. RPS is a policy that requires suppliers of electricity to meet a portion of their energy supply needs with eligible forms of renewable energy. An electricity supplier must meet RPS by accumulating “renewable energy credits” (RECs) created from various renewable energy sources classified as Tier 1 and Tier 2 renewable sources. Owners of renewable generating facilities sell RECs associated with their facilities and the payment received for those RECs helps to offset a portion of the installation costs. RECs can be purchased and traded in an open exchange, allowing electricity suppliers to purchase RECs directly from generators or through a third-party reseller. Senate Bill 277 (passed) increases the percentage requirements of RPS that must be obtained from Tier 1 solar energy sources each year between 2011 and 2016, from the current 2016 mandate of 0.35% to 0.50%.
Net energy metering measures the difference between the electricity that is supplied by an electric company and the electricity that is generated by an eligible customer-generator and fed back to the electric company over the eligible customer-generator’s billing period, and bills the customer only for the difference. Senate Bill 355/House Bill 801 (both passed) alter the net energy metering program by changing the way an eligible customer-generator may accrue credits from excess generation from a kilowatt-hour (kWh) basis to a dollar basis. The bill repeals the requirement that an accrued generation credit expires at the end of a 12-month period and requires that the value of generation credits be based on the prevailing market price of electricity in the PJM Interconnection energy market. The bill also specifies the conditions under which an electric company must provide payment to an eligible customer-generator for excess generation credits. In adopting implementing regulations, PSC must consider a number of factors, including the technology available at each electric company and the appropriate value of generation credits. The bill also requires PSC to convene a technical working group to address issues relating to the pricing mechanisms.
Senate Bill 529/House Bill 821 (both passed) adds a fuel cell power system to the types of generation eligible for net metering. A fuel cell is defined as an integrated power plant system containing a stack, tubular array, or other functionally similar configuration used to electrochemically convert fuel to electric energy. This may include an inverter and fuel processing system and other plant equipment to support the plant’s operation or its energy conversion, including heat recovery. Although a fuel cell power system does not typically use a renewable energy source, distributed generation such as a fuel cell power system provides a meaningful benefit by alleviating congestion in electric transmission lines and lessening overall demand for electricity during periods of peak demand.
Senate Bill 538/House Bill 1138 (both passed) authorize PSC to allow the use of a master electric or gas meter for HVAC services without requiring individual metering or submetering in a residential multiple-occupancy building as long as the utility bill for HVAC services is included in the rent for that unit. PSC must be satisfied that the use of a master meter will result in a net savings of energy over the energy savings that would result from individual metering or submetering. Each individually leased or owned occupancy unit must have individual metered service for other energy services and must directly receive the utility bill for those other services. Before authorizing the use of a master meter for HVAC services, PSC may review the proposed allocation of HVAC system expenses among individual units and common areas served by the master meter. An electric company may inspect and test a master meter authorized under the bill. The bills terminate after three years, on June 30, 2013.
The Administration introduced Senate Bill 278/House Bill 474 (both passed) to repeal the Task Force on the Future for Growth and Development in Maryland and establish a Maryland Sustainable Growth Commission. The commission is to provide the State with a broad representation of stakeholders who can continue to promote a smart and sustainable growth agenda and is intended to build on the task force’s work by providing a forum to analyze and advise on a myriad of land use planning issues.
House Bill 1155 (passed) alters the process under which Maryland Department of Transportation evaluates and selects capital projects to be included in the construction program. A local government or other government agency that requests a major capital project for inclusion in the CTP is required to submit a document to MDOT discussing the need for the project and how the project addresses the State’s transportation goals and supports local government land use plans. MDOT must evaluate requests for major capital projects based on the State’s goals and, as appropriate, criteria as determined by the information submitted by the proposing entity and the availability of funding. As part of this evaluation, the Smart Growth Subcabinet is required under the bill to conduct an annual review of transportation goals, benchmarks, and indicators. MDOT and a previously established advisory committee, consisting of various transportation experts, representatives of State and local government, and representatives of environmental, business, and community interests, are required to consider the impact of the State’s transportation investment on the environment, environmental justice, communities, and economic development.
House Bill 282 (Ch. 145) requires MDOT to review and update the Statewide 20-year Bicycle Pedestrian Master Plan each year. Additionally, the bill requires MDOT to ensure that there is an appropriate balance between funding for new highway construction projects and projects that retrofit existing transportation projects with facilities for pedestrians and bicycle riders; and place increased emphasis, in transit-oriented areas within priority funding areas (PFAs), on projects that retrofit existing transportation projects with additional facilities and accessibility for pedestrians and bicycle riders. By directing State spending to PFAs, the State seeks to make the most efficient and effective use of existing infrastructure; preserve existing neighborhoods; and preserve Maryland’s fields, farms, and open spaces.
To ensure that the State’s investments in transportation retain their value and remain safe, MDOT allocates funds for activities aimed at preserving the existing transportation system before pursuing capacity expansion projects. In addition, PFAs were established by the Smart Growth and Neighborhood Conservation Act of 1997 to focus State spending in order to strengthen the State’s efforts to control sprawl, enhance land use, and control pollution. House Bill 786 (passed) requires the State Highway Administration (SHA) to categorize a sidewalk or bicycle pathway construction project as “system preservation” and give the project funding priority if it is located in a PFA; the adjacent roadway is not being concurrently constructed or reconstructed; and SHA determines a substantial public safety risk or significant impediment to pedestrian access exists. The State is authorized to assume all costs for constructing or reconstructing these sidewalks or bicycle pathways.
Related Environmental Issues
Lead poisoning has various side effects, including learning disabilities and behavioral problems. According to the Centers for Disease Control and Prevention, adverse health effects exist in children with blood Lead levels less than 10 micrograms per deciliter. According to the most recent data available, the number of children with elevated blood lead levels has been decreasing at both the State and national level. According to the Maryland Department of the Environment, lead paint dust from deteriorated lead paint or home renovation is the major source of exposure for children in Maryland. House Bill 1011 (passed) authorizes the juvenile court, after a delinquency petition has been filed but before adjudication, to order the child to undergo blood lead level testing. Before trial, a court exercising criminal jurisdiction in a case involving a child may also order the child to undergo blood lead level testing. The results of the test must be provided to the child, the child’s parent or guardian, the child’s attorney, and the State’s Attorney.
House Bill 168 (passed) adds architectural, engineering, inspecting, and surveying services to the list of services for which indemnity agreements are considered void and unenforceable as a matter of public policy under State law. At common law, a contract can be unenforceable if it has an illegal purpose, is contrary to public policy, or is unconscionable, among other reasons. Current statutory law establishes that construction or property maintenance contracts or agreements that purport to indemnify the promisee against property damage or bodily injury caused by or resulting from the sole negligence of the promisee or indemnitee (or the person’s agents or employees) are against public policy and are void and unenforceable. The prohibition also applies to promises, agreements or understandings connected to these contracts or agreements but does not apply to insurance-related and workers’ compensation contracts. The bill expands the list of services for which indemnity agreements are considered void and unenforceable.
Current law provides a “statute of repose” for lawsuits related to errors in a land survey. Under the statute of repose, no cause of action accrues and a person may not seek contribution or indemnity for damages incurred for an error in a survey of land unless an action for damages is brought within 15 years of the survey, or within 3 years after the discovery of the error, whichever occurs first. Senate Bill 531/House Bill 907 (both passed) reduce this statute of repose from 15 to 10 years after the survey, or within 3 years after the discovery of the error, whichever occurs first.
Strategic Lawsuits Against Public Participation (SLAPP) suit laws protect individuals and groups, from defending costly legal challenges to their lawful exercise of such constitutionally protected rights as free speech, assembly, and the right to petition the government. Covered activities may include writing letters to the editor, circulating petitions, organizing and conducting peaceful protests, reporting unlawful activities, speaking at public meetings, and similar actions. Plaintiffs in these lawsuits, who typically have far greater resources than defendants, may allege a number of legal wrongs. The goal of these lawsuits is often not to win the case, but rather to cause the defendants to devote such significant resources to defending it that they are unable to continue the challenged activities. Senate Bill 990/House Bill 1250 (both passed) change the statute pertaining to SLAPP suits. The bills expand the definition of a SLAPP suit to include a suit that inhibits the exercise of federal or State constitutional rights of free speech (rather than the current limited application of SLAPP status to suits in which there is an intent to inhibit those rights); and a suit based on communications regarding any issue of public concern (rather than the current limited application to matters within the authority of a government body).
Senate Bill 624 (passed) repeals the general requirement that a bicycle operator use the shoulder if it is safe and paved to a smooth surface. The bill also specifies that, in a place where a person may ride a bicycle on a sidewalk, a person may ride from the curb or edge of the roadway in or through a crosswalk to the opposite curb or edge. The bill alters the definition of “bicycle” by repealing provisions that specify that a bicycle must have a rear drive and a specified wheel configuration and establishes instead that a bicycle is a vehicle that is designed to be operated by human power; has two or three wheels, with one being more than 14 inches in diameter; and has a drive mechanism other than by pedals directly attached to a drive wheel. The definition of “crosswalk” is expanded to mean the connection of lateral lines of a bicycle way where a bicycle way and roadway of any type meet as measured from the curbs or the edges of the roadway.
Senate Bill 51 (passed) requires a driver of a vehicle to safely overtake a bicycle, electric personal assistive mobility device, or a motor scooter at a distance of at least three feet, unless at the time, the bicycle rider fails to ride to the right side of the roadway, comply with a requirement to ride in a bike lane or shoulder, or maintain a steady course. The passing rule under the bill also does not apply if the highway on which the vehicle is being driven is not wide enough to lawfully pass the bicycle, at a distance of at least three feet.
Recycling efforts an demand for metals such as copper and aluminum tend to encourage metal theft. Senate Bill 99/House Bill 1174 (both passed) modify the definition of junk and scrap metal to include articles made wholly or substantially of enumerated metals and alloys. For example, the bills define certain used articles, such as catalytic converters, metal bleachers, hard-drawn copper, metal beer kegs, cemetery urns, grave markers, and propane tanks, as junk or scrap metal. Other used materials owned by public utilities are likewise defined as junk or scrap metal by the bills. For each purchase, a junk dealer or scrap metal processor has to keep specified transactional information. In turn, dealers and processors must then report certain information to law enforcement by the end of the business day after each transaction. The recordkeeping and reporting requirements do not apply to an item acquired from a licensed dealer or processor; a unit of government; or a commercial enterprise with a valid business license with which the dealer or processor has entered into a written contract. The bills preempt the right of a county or municipality to regulate the resale of junk or scrap metal; however, local licensing schemes are not preempted.
Bisphenol-A (BPA) is a compound found in many plastics. In January 2010 the U.S. Food and Drug Administration (FDA) released findings stating that the FDA had some concern about the effects of BPA on the brain behavior and prostate gland in fetuses, infants, and young children. Senate Bill 213/House Bill 33 (Chs. 46 and 47) prohibit a person from manufacturing, distributing, or knowingly selling child care articles that contain BPA on or after January 10, 2012.
Stormwater Management was one of the major issues of the session. State law requires each county and municipality to adopt ordinances necessary to implement a stormwater management program. In general, land may not be developed without submitting, and getting approval of, a stormwater management plan from a county or municipality. The Stormwater Management Act of 2007 required MDE to adopt regulations and a model ordinance that require environmental site design (ESD). ESD involves small-scale practices, nonstructural techniques. MDE adopted regulations requiring the use of ESD to the maximum extent practicable, to apply to new projects that do not have certain final plans approved by May 4, 2010. After the regulations were adopted, however, numerous concerns regarding the 2009 ESD regulations were raised by local jurisdictions, developers, and others. To address some of these concerns, in March 2010 MDE submitted emergency regulations to the General Assembly’s Administrative, Executive, and Legislative Review (AELR) Committee. On the grandfathering issue, the emergency regulations allow local governments to incorporate waiver provisions into their ordinances for projects that have completed part of the development review process but have not received final approval by May 4, 2010. A grandfathered project that receives an administrative waiver may proceed with the development under the stormwater regulations in effect as of May 4, 2009. The emergency regulations also provide local governments with greater flexibility in addressing the new requirements for redevelopment projects by providing for alternative stormwater management measures under specified conditions. In response to the emergency regulations the several bills introduced on this subject each failed.
In 2009, legislation was enacted that requires new or replacement onsite sewage disposal (septic) systems located in the Chesapeake Bay Critical Area to utilize best available technology for nitrogen removal. House Bill 62 (passed) requires MDE, in for calendar 2010 through 2012, to provide funding for the entire cost difference between a conventional septic system and one utilizing best available technology for nitrogen removal. The bill is consistent with MDE’s current practices.
In 1988, the Maryland Recycling Act required each county to submit a recycling plan. Jurisdictions with more than 150,000 residents were required to reduce their solid waste by 20%, and jurisdictions with less than 150,000 residents were required to reduce their solid waste by 15%. According to MDE, by 2000, every county had met or exceeded their percentage requirements under the Maryland Recycling Act. Further legislation enacted in 2000 established a voluntary statewide diversion goal of 40% by 2005. Counties have flexibility to determine the best way to reach the required recycling rates. House Bill 982 (passed) requires MDE, in consultation with local governments, waste haulers, material resource facilities, and other affected parties, to conduct a study to evaluate solid waste management processes that reduce the solid waste stream through recycling and source reduction.
House Bill 685 (passed) requires a county’s recycling plan to address a strategy for collecting and recycling fluorescent and compact fluorescent lights that contain mercury. A county’s recycling plan must be revised to reflect the new requirements by October 1, 2011. A county may utilize recycling, exchange, and take-back programs that have been established by fluorescent and compact fluorescent light manufacturers and vendors in its strategy.
Maryland law recognizes that the purpose of a corporation is to make a profit for its shareholders. Senate Bill 690/House Bill 1009 (Chs. 97 and 98) authorize a Maryland corporation to elect to be a Benefit Corporation which must have as its purpose the creation of one or more public benefits. Under the Acts, a corporation may elect to be a benefit corporation by amending or including in its charter a statement that the corporation is a benefit corporation. A benefit corporation must have the purpose of creating a general public benefit, defined in the Acts as a “material, positive impact on society and the environment … through activities that promote a combination of specific public benefits.” Specific public benefits are defined to include preserving the environment, improving human health, and promoting the arts, sciences, or advancement of knowledge.
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