HB 77
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Third Reader - Revised
House Bill 77 (Delegate Stewart)
Environment and Transportation Education, Health, and Environmental Affairs
Environment - Driveway Sealers - Prohibitions (Safer Sealant Act of 2021)
This bill requires the Maryland Department of the Environment (MDE) to develop labeling
standards for a person supplying, selling, offering for sale, or manufacturing a “driveway
sealer” for use in the State, as specified. Beginning October 1, 2022, the bill prohibits a
person from (1) supplying, selling, offering for sale, or manufacturing a “high-PAH
driveway sealer” for use in the State; (2) soliciting the application of a high-PAH driveway
sealer to pavement in the State; or (3) supplying, selling, offering for sale, or manufacturing
a driveway sealer in the State unless the driveway sealer is labeled in accordance with the
bill. Existing enforcement and penalty provisions apply to the bill and any regulations
adopted or orders issued pursuant to the bill. Any penalties collected by MDE pursuant to
the bill are paid into the Maryland Clean Water Fund; the bill expands the authorized use
of the fund to include activities conducted by MDE under the bill. MDE must adopt
specified regulations and is authorized to adopt implementing regulations.
Fiscal Summary
State Effect: Special fund expenditures increase by $84,800 in FY 2022. Future year
expenditures reflect annualization, ongoing costs, and termination of the contractual
employee in FY 2025. The application of existing penalty provisions is not expected to
materially affect State finances.
(in dollars) FY 2022 FY 2023 FY 2024 FY 2025 FY 2026
Revenues $0 $0 $0 $0 $0
SF Expenditure 84,800 56,200 57,600 25,100 0
Net Effect ($84,800) ($56,200) ($57,600) ($25,100) $0
Note:() = decrease; GF = general funds; FF = federal funds; SF = special funds; - = indeterminate increase; (-) = indeterminate decrease
Local Effect: The bill is not anticipated to significantly affect local finances, as discussed
below.
Small Business Effect: Potential meaningful.
 Analysis
Bill Summary: “Driveway sealer” means a coating labeled and formulated for application
to worn asphalt driveway and parking lot surfaces to (1) fill cracks; (2) seal the surface to
provide protection; or (3) restore or preserve appearance. “High-PAH driveway sealer”
means a driveway sealer containing more than 0.100% polycyclic aromatic hydrocarbons
(PAH) by weight.
As noted above, MDE must adopt labeling standards that include the placement of the
composition of the driveway sealer as a percentage of PAH by weight on the label. MDE
must also adopt regulations to allow a sealant manufacturer to label a product that contains
less than 50 ppm PAH by weight as “low PAH.”
The provisions of §§ 9-334 through 9-344 of the Environment Article apply to the
enforcement of violations of the bill, any regulation adopted under the bill, or any order
issued under the bill. These existing provisions are discussed below in the Current Law
section of this fiscal and policy note.
Current Law:
Regulations Relating to Driveway Sealers
Current regulations relating to water quality, air quality, and hazardous waste address coal
tar (which can be used as an asphalt sealer) and PAH, which is a substance contained in
coal tar. Specifically, MDE regulations (1) establish a maximum concentration level of
PAH for surface waters used as a public water supply; (2) require that a community water
supply system identify if coal tar lined pipes and tanks are present in their distribution
system and report to the approving authority; (3) require that a coal tar pitch impregnating
operation obtain a State air quality permit to operate; and (4) designate certain residues
from the recovery, distillation, and storage of coal tar as hazardous waste.
Enforcement
The Secretary of the Environment is required to carry out and enforce the provisions of the
Environment Article.
Sections 9-334 through 9-344 of the Environment Article: The provisions of §§ 9-334
through 9-344 of the Environment Article establish enforcement procedures that govern
(1) the ability for MDE to issue complaints, conduct hearings, issue corrective orders, and
obtain injunctive relief and (2) judicial review of final decisions. The Attorney General is
in charge of prosecuting and defending cases that arise on behalf of the State.
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In addition to being subject to an injunctive action, a violator is subject to a civil penalty
of up to $10,000, which is collected in a civil action brought by MDE. MDE is also
authorized to impose administrative penalties of up to $10,000 for each violation, not
exceeding $100,000 total. Each day is a separate violation.
Further, any person who violates any provision of, or fails to perform any duty imposed by
Subtitle 9 of the Environment Article (which addresses water pollution control), or any
related regulations, orders or permits, is guilty of a misdemeanor and upon conviction, is
subject to (1) for a first offense, a fine of up to $25,000 and/or imprisonment for up to
one year and (2) for future convictions, a fine of up to $50,000 for each day of violation
and/or imprisonment for up to two years. Specified criminal penalties also apply to making
false statements in required documents.
State Expenditures:
MDE Enforcement Costs
Special fund expenditures from the Maryland Clean Water Fund increase by $84,826 in
fiscal 2022, which accounts for the bill’s October 1, 2021 effective date. This estimate
reflects the cost of hiring one contractual environmental compliance specialist within MDE
to handle enforcement and compliance responsibilities, including developing the required
labeling standards, developing and adopting regulations, conducting outreach to affected
entities, conducting inspections, mailing warning notices, and preparing enforcement
cases. It includes a salary, fringe benefits, one-time start-up costs (including the purchase
of a vehicle), and ongoing operating expenses, including laboratory testing and analysis
costs.
Contractual Position 1.0
Salary and Fringe Benefits $34,524
Vehicle Purchase 32,000
Contractual Laboratory Costs 7,500
Other Operating Expenses 10,802
Total FY 2022 MDE Expenditures $84,826
Future year expenditures reflect a full salary with annual increases and employee turnover,
ongoing operating expenses, and termination of the contractual employee after three years
(in fiscal 2025). This estimate assumes that as affected entities become aware of the bill’s
requirements and voluntarily come into compliance, MDE can handle enforcement and
implementation of the bill’s prohibitions with existing staff.
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This estimate does not include any health insurance costs that could be incurred for
specified contractual employees under the State’s implementation of the federal Patient
Protection and Affordable Care Act.
Other State Agencies
Currently available information suggests that most State agencies use alternative products
and/or already comply with the bill. Thus, the bill’s prohibitions are not anticipated to
materially affect State expenditures with respect to paving. To the extent that some
agencies do use affected products in a manner prohibited by the bill, expenditures may
increase to use an alternative replacement product. Based on preliminary research, there
are alternative products available, but these products are slightly more expensive.
Local Fiscal Effect: Based on a survey of local governments, the bill is not anticipated to
significantly affect local finances. All of the jurisdictions that responded to requests for
information regarding the potential fiscal impact of this bill indicate that they either already
have similar bans or use products that comply with the bill.
For any local jurisdictions that use affected products, expenditures may increase to
purchase alternative products. However, because the bill’s prohibitions do not take effect
until October 1, 2022, the bill provides time to use existing inventory and to identify and
purchase alternatives. As discussed above, based on preliminary research, there are
alternative products available, but these products are slightly more expensive.
The application of existing penalty provisions is not anticipated to materially affect local
finances or operations.
Small Business Effect: The bill may have a meaningful impact on any small businesses
that manufacture affected driveway sealer products. The number of affected manufacturers
in the State, if any, is unknown. The bill may also result in a loss of revenues and sales for
any small businesses that sell affected driveway sealer products.
Further, expenditures may increase for any small businesses that use affected driveway
sealer products in a manner prohibited by the bill and must switch to a different product or
develop a new business model. Affected businesses could include construction companies,
paving companies, and driveway resurfacing companies. However, because the bill’s
prohibitions do not take effect until October 1, 2022, the bill provides time to use existing
inventory and to identify and purchase alternatives. Based on preliminary research, there
are alternative products available, but these products are slightly more expensive.
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 Additional Information
Prior Introductions: HB 553 of 2020, a similar bill, received a hearing in the
House Environment and Transportation Committee, but no further action was taken. Its
cross file, SB 730, received a hearing in the Senate Education, Health, and Environmental
Affairs Committee, but no further action was taken. HB 411 of 2019, another similar bill,
received a hearing in the House Environment and Transportation Committee but was
subsequently withdrawn.
Designated Cross File: None.
Information Source(s): Baltimore City; Kent, Montgomery, Washington, and Worcester
counties; City of Salisbury; towns of Bel Air and Leonardtown; Maryland Department of
the Environment; Maryland Department of Transportation; Department of Legislative
Services
Fiscal Note History: First Reader - January 18, 2021
rh/lgc Third Reader - March 23, 2021
Revised - Amendment(s) - March 23, 2021
Analysis by: Kathleen P. Kennedy Direct Inquiries to:
(410) 946-5510
(301) 970-5510
HB 77/ Page 5


Statutes affected:
Text - First - Environment – Application of Coal Tar Pavement Products – Prohibitions (Safer Sealant Act of 2021): 92-301 Environment, 92-302 Environment, 92-303 Environment, 92-304 Environment
Text - Third - Environment - Driveway Sealers - Prohibitions (Safer Sealant Act of 2021): 9-320 Environment, 92-301 Environment, 92-302 Environment, 92-303 Environment, 92-303 Environment, 92-304 Environment, 9-320 Environment