Md. Code Regs. 26.20.34.09

Current through Register Vol. 51, No. 21, October 18, 2024

Section 26.20.34.09 - Award of Costs

A. Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any adjudicatory hearing under this subtitle.

B. The petition for an award of costs and expenses including attorneys' fees shall be filed with the Secretary within 45 days of receipt of a final decision under Regulation .08 of this chapter. Failure to make a timely filing of a petition may constitute a waiver of the right to this award.

C. The petition shall include the name of the person from whom costs and expenses are sought, and the following shall be submitted in support of the petition:

(1) An affidavit setting forth in detail all costs and expenses, including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

(2) Receipts or other evidence of these costs and expenses; and

(3) If attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for these services in the area, and the experience, reputation, and ability of the individual or individuals performing the service.

D. Any person served with a copy of a petition shall have 30 days from service of the petition within which to file an answer to this petition.

E. Appropriate costs and expenses including attorneys' fees may be awarded as follows:

(1) To any person from the permittee, if:

(a) The person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the Act, regulations, or permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the Secretary determines that the person made a substantial contribution to the full and fair determination of the issues, or

(b) The person initiates an application for review of alleged discriminatory acts, upon a finding of discriminatory discharge or other acts of discrimination;

(2) To any person, other than a permittee or his representative, from the Bureau, if the person initiates or participates in any proceeding under this subtitle, upon a finding that the person made a substantial contribution to a full and fair determination of the issues;

(3) To a permittee from the Bureau when the permittee demonstrates that the Bureau issued an order of cessation, a notice of violation, or an order to show cause why a permit should not be suspended or revoked, in bad faith for the purpose of harassing or embarrassing the permittee;

(4) To a permittee from any person when the permittee demonstrates that the person initiated a proceeding under this subtitle or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee;

(5) To the Bureau when it demonstrates that any person applied for review under this subtitle or that any party participated in such a proceeding in bad faith and for the purpose of harassing or embarrassing the Government.

F. An award under this chapter may include:

(1) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation or participation in a proceeding under this subtitle;

(2) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award.

G. Any person aggrieved by a decision concerning the award of costs and expenses in an administrative proceeding under this chapter is entitled to judicial review in accordance with State Government Article, § 10-222. Annotated Code of Maryland.

Md. Code Regs. 26.20.34.09

Regulations .09 were previously codified as COMAR 08.13.09.43 a A_D, E_J, and K_O, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.
Regulation .09G amended effective December 27, 1999 (26:26 Md. R. 1961)