In 2001, the Florida Legislature passed the Environmental Litigation Reform Act (ELRA). Before ELRA, the Florida Department of Environmental Protection (DEP) could pursue corrective actions and civil penalties for violations only by filing in state court. ELRA, on the other hand, authorizes DEP to act on cases with penalties of $10,000 or less through administrative proceedings. The outcome is swifter, more efficient, more consistent enforcement compared to civil litigation, which can be costly and prolonged.

When a penalty is in order, DEP’s first step is to calculate it based on the list of violations and associated penalties in ELRA. Each program covered under ELRA has a specific schedule of penalties for different kinds of violations. (Violations involving hazardous waste, asbestos and underground injection are not required to be calculated under ELRA.) If a calculated penalty is $10,000 or less, staff reviews the specific circumstances of the violations to determine whether the penalty should be adjusted because:

• The violator demonstrates good faith;
• The violation was beyond the violator’s control;
• The penalty is beyond the violator’s ability to pay;
• There is a history of non-compliance;
• The violator gained an economic benefit from the violation.

If, after accounting for these considerations, the adjusted penalty is $10,000 or less, or can reasonably be capped at $10,000 to quickly and effectively resolve an issue, ELRA applies and DEP pursues a consent order with the violator. Consent orders are legally binding agreements that establish specific actions to be completed within specific timeframes to resolve the violation. If a settlement cannot be reached with the violator, DEP issues a Notice of Violation and pursues administrative litigation.

If the adjusted penalty is more than $10,000, ELRA does not apply and DEP instead considers program-specific guidelines for characterizing violations and assessing penalties. These guidelines reflect two fundamental factors: the violation’s actual or potential environmental harm; and the extent of deviation—magnitude or duration—from a statutory or regulatory requirement. If a settlement cannot be reached consistent with DEP’s Settlement Guidelines for Civil and Administrative Penalties (DEP Directive 923)[PDF - 1.29 MB] then DEP will file an enforcement action in state court.

Whether enforcing violations in state court or under ELRA, DEP may settle with a violator to quickly obtain the corrective actions necessary to protect the environment along with penalties sufficient to discourage future violations. Remember, the objective is returning to compliance quickly and staying in compliance in the future. Enforcement and penalties are simply one means to that end.

ELRA is in section 403.121, Florida Statutes. Learn more about DEP’s non-ELRA penalty guidelines.