WILLIAM DONALD SCHAEFER, Governor

As a result of this legislation, the Department is developing two
form letters that will automatically be sent to the legislators
in the appropriate district when an application for a permit is
received and before a permit is issued. Because this
notification process will become part of the routine procedure
for processing a refuse disposal permit, it is unlikely that the
Department will fail to notify a legislator residing in that
district. One problem arises, however, in that Senate Bill 18
also requires that the Department notify any legislator that
requests such notification, but does not specify any formal
mechanism for making the request. Because the request does not
have to be made in writing, it is possible that a notification
request could be made to any employee of the Department under any
variety of circumstances and that the request not be communicated
to the appropriate unit of the Department.

The State would then be liable for both civil and criminal
penalties if the notification requirements were not performed.
House Bill 448, which the General Assembly enacted this year and
I signed into law on May 17, 1988, applies penalties under
Section 9-334 through 9-342 of the Environment Article to enforce
violations of the refuse disposal law. The law contains civil
penalties not exceeding $10,000 and administrative civil
penalties of up to $1,000 for each violation not to exceed
$50,000 total for any violation of the subtitle. The law also
provides for criminal penalties of up to $25,000 and/or
imprisonment not exceeding one year for a first offense and a
fine not exceeding $50,000 and/or imprisonment not exceeding two
years for any subsequent offense against any person (including a
State agency) who "fails to perform any duty imposed by this
subtitle". In addition to the Attorney General, the State's
Attorney for each county and Baltimore City has the authority to
bring a criminal action under Section 9-344(b) of this subtitle.

Furthermore, while failure on the part of the Department to
satisfy the notification requirement does not constitute a
violation on the part of the permit holder, it does raise
questions as to whether the owner or operator of the refuse
disposal system was operating on an invalid permit prior to the
required notification and, if so, whether a court would impose a
penalty under these circumstances. It is also possible that the
Department may be required to suspend the permit until the
notification is performed and the permit renewed.

It is important to note that the Department did not support
Senate Bill 18 as written, but rather suggested technical
amendments that would have placed the burden of notification on
the applicant. These amendments would have conformed the
notification requirements for legislators with the existing
notification requirements for the public and local officials.
Under current law the applicant, not the Department, is required
to notify the public and local elected officials as a
prerequisite to obtaining a permit for a landfill or incinerator.

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