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How Penalties are Assessed Quick Links
  • The information on the Environmental Litigation Reform Act (ELRA) page outlines how the penalty assessment process starts in most cases involving penalties of less than $10,000. The Florida Department of Environmental Protection’s (DEP) first step is to calculate a penalty based on the list of violations and associated penalties in ELRA. If a penalty is determined to be more than $10,000, or if DEP pursues the case in state court, as opposed to an administrative forum, ELRA does not apply and alternative penalty guidelines apply. The amount of any penalty should reflect the seriousness of the violation and the responsiveness and behavior of the violator. Penalties must not be viewed merely as the cost of doing business. They must be imposed swiftly and they have to create enough of an impact to deter future violations, whether by that same violator or by others. And to deter others from violations, word has to get around—this website is one avenue to spreading the word.

    In 2007, DEP changed its Settlement Guidelines for Civil and Administrative Penalties to increase penalty calculations in six different ways. Read more about the change to penalty guidelines.

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VIOLATION: Illegal Mangrove Trimming

Increase the use and amount of penalties for multi-day violations when the violations are determined to be significantly detrimental to the environment or to one of DEP’s regulatory programs.

Penalty before 2007 changes: $62,116 Penalty after 2007 changes: $215,990

In May 2008, applying the current penalty guidelines to illegal mangrove trimming violations in a case against  Realmark’s Burnt Store Marina in DEP’s South District resulted in a penalty calculation of $215,990. The penalty calculated for the same violations using the pre 2007 guidelines would likely have resulted in a penalty calculation of $62,116. The difference results from multiplying each day of the violation by the full penalty amount, versus multiplying each day after the first day of violation by 10 percent of the matrix amount, which had been the common practice.

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VIOLATION: Air Emission Releases

Increase the recovery of economic benefit obtained from violations in all cases in which the economic benefit, unless it is minimal, can be determined practically.

Penalty before 2007 changes: $76,743 Penalty after 2007 changes: $406,322

In March 2008, using the current penalty guidelines in an air emissions case involving Veolia Environmental Services in DEP's Southeast District resulted in a penalty calculation of $406,322. The penalty calculated for the same violations, prior to the pre-2007 guidelines would likely have resulted in a penalty calculation of $76,743. The Southeast District calculated an economic benefit of $329,579 based on savings $0.37 per pound of carbon on 890,754 pounds of carbon which the facility did not inject as it was required to do by its permit.

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VIOLATION: Hazardous Waste

Increase the penalties sought for hazardous waste violations by revising the hazardous waste penalty matrix to be consistent with U.S. Environmental Protection Agency’s Resource Conservation and Recovery Act (RCRA) penalty matrix, and by providing guidance on pursuing the maximum statutory penalty when the violation results in human injury or death, or when the violation involves the deliberate disposal of hazardous waste.

Penalty before 2007 changes: $120,487 Penalty after 2007 changes: $160,588

In May 2008, the penalties calculated in a RCRA violation case involving the JSSA, Inc. in DEP's Central District using the current penalty guidelines resulted in a penalty calculation of $160,588. The penalty calculation for the same violations prior to the 2007 changes to the hazardous waste matrix would likely have resulted in a penalty calculation of $120,487.

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VIOLATION: Hazardous Substance

Increase the penalties sought for hazardous substance violations by providing a penalty matrix that is based upon a higher penalty amount authorized by statute.

Penalty before 2007 changes: $34,047 Penalty after 2007 changes: $49,047

In September 2008, the penalties calculated in the Lockheed Martin case in DEP's Southwest District involving the release of a hazardous substance using the current penalty guidelines resulted in a penalty calculation of $49,047. The penalty calculation for the same violations prior to the 2007 changes would likely have resulted in a penalty calculation of $34,047.

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VIOLATION: NPDES Stormwater

Increase the use of DEP penalty matrices instead of the Environmental Litigation Reform Act (ELRA) penalty schedules for all cases that would not be pursued under ELRA.

Penalty before 2007 changes: $21,586 Penalty after 2007 changes: $35,940

In January 2007, applying the previous penalty guidelines to NPDES Stormwater violations in a case against Ginn-LA St. Lucie LTD., LLLP resulted in a penalty calculation of $21,586. The penalty calculated for the same violations using the revised 2007 guidelines would likely have resulted in a penalty calculation of $35,940. The difference results from multiplying each day of the violation by the full penalty amount, versus multiplying each day after the first day of violation by a lower matrix amount.

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VIOLATION: Domestic Wastewater

Increase in the use of the top of the penalty matrix ranges for violations that are knowing, deliberate, or chronic.

Penalty before 2007 changes: $77,600 Penalty after 2007 changes: $140,140

In September 2008, the penalties calculated in a domestic wastewater violation case in DEP's Northwest District involving Innerarity Island Development Corporation using the current penalty guidelines resulted in a penalty calculation of $140,140. The penalty calculation using the pre-2007 guidelines would result in a $77,600 penalty.

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Last updated: January 24, 2011

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