GUIDELINES FOR CHARACTERIZING AIR VIOLATIONS
FOR
STATIONARY (POINT) SOURCES OF AIR POLLUTION
REVISED TO REFLECT IMPLEMENTATION OF THE ENVIRONMENTAL
LITIGATION REFORM ACT (ELRA)
INTRODUCTION
The Guidelines for Characterizing Air Violations (the Air Guidelines) are provided to
supplement Program Directive DEP 923, Settlement Guidelines for Civil Penalties
[“Directive 923”]. The first step in determining a penalty calculation is to determine if the
violation is specifically listed in Section 403.121, F.S. Use the step-by-step process
below to determine the appropriate penalty calculation for an air enforcement case.
Step 1: is the violation specifically listed in Section 403.121, F.S.?
403.121 EXCERPTED (Emphasis Added)
403.121(3)(f) Air Emission Violation. The department shall assess a penalty of $1,000 for an unpermitted or unauthorized air
emission or an air-emission-permit exceedance, plus $1,000 if the emission results in an air quality violation, plus $3,000 if the
emission was from a major source and the source was major for the pollutant in violation; plus $1,000 if the emission was more
than 150 percent of the allowable level.
403.121(4)In addition to assessments under (3)(f), the department shall assess administrative penalties according to the
following schedule:
(a) Failure to satisfy financial responsibility requirements or violation of s. 377.371(1), $5,000.
(b) Failure to install, maintain, or use a required pollution control system or device, $4,000.
(c) Failure to obtain a required permit before construction or modification, $3,000.
(d) Failure: to conduct required monitoring or testing; to conduct required release detection; or to construct in compliance with a
permit, $2,000.
(e) Failure: to maintain required staff to respond to emergencies; to conduct required training; to prepare, maintain, or update
required contingency plans; to adequately respond to emergencies to bring an emergency situation under control; or to submit
required notification to the department, $1,000.
(f) Failure to prepare, submit, maintain, or use required reports or other required documentation, $500.
403.121(8) The direct economic benefit gained by the violator from the violation, where consideration of economic benefit is
provided by Florida law or required by federal law as part of a federally delegated or approved program, shall be added to the
scheduled administrative penalty. The total administrative penalty, including any economic benefit added to the scheduled
administrative penalty, shall not exceed $10,000.
If the violation is listed in Section 403.121, F.S., use the penalty amount listed in Section
403.121, F.S. and proceed to Step 2.
If the violation is not specifically listed in Section 403.121, F.S., use Section 2 of the Air
Guidelines to determine the appropriate penalty amount and proceed to Step 2.
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Step 2: is the total penalty amount for all violations over $10,000?
Using the penalty amount identified in Step 1 (Section 403.121 or Section 2), does the
total penalty plus the economic benefit of noncompliance component for all of the
violations exceed $10,000? If the total penalty plus the economic benefit of
noncompliance component for all of the violations does not exceed $10,000, use the
penalty amounts identified in Step 1 for the penalty calculation. ONLY if the total
penalty for all violations plus the economic benefit of noncompliance component
exceeds $10,000, proceed to Step 3.\
Step 3: is the violation a major potential for harm?
Use Section 1 of this General Air Penalty Guideline to determine if any of the violations
are classified as a major potential for harm. Use the penalty amount identified in the
General Air Penalty Guideline Section 1 for those violations that are a major potential
for harm. If a violation is not classified as a major potential for harm, utilize the penalty
amount identified in Step 1 (Section 403.121 or Section 2), above, for that violation.
Multi-day penalties
A separate violation shall exist for each day that one of the following compliance
methods demonstrates a failure to comply with emission limiting standards:
1. Reference method stack tests. When a complete stack test spans more than
one day, District and Local Programs may treat each day of operation from the
date testing begins through the date testing is complete as a separate violation.
2. Continuous Monitoring Systems (CMS) data where the CMS is the method of
compliance.
3. Visual emissions observations using EPA Method 9, DEP Method 9 or EPA
Method 22.
An emission unit shall be considered in violation of an emission-limiting standard for
each day of operation between the day the compliance method demonstrates an
exceedance until the day the compliance method demonstrates emissions are below
the allowable limit. Multi-day penalties for each day of operation during that period may
be sought except for days needed by the facility to prepare for additional compliance
tests, not to exceed fourteen (14) consecutive days total.
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SECTION 1: MAJOR POTENTIAL FOR HARM VIOLATIONS
Pursuant to Section 5C of the Program Directive DEP 923, Settlement Guidelines for
Civil Penalties, the following Air Guidelines should be used for a violation if the total of
all violations utilizing the Environmental Litigation Reform Act (ELRA), Section 403.121,
F.S., exceeds $10,000 and the violation in question is listed herein as major potential
for harm.
A.
Emission Limiting Exceedances
The following emission limiting exceedances are considered major potential for harm:
1.
Major emission unit subject to federal emission limiting standards or the
State Implementation Plan (SIP) for the specific pollutant in violation.
2.
An emission limit for the pollutant in question established by BACT, MACT
or LAER determination, or with limits established to exempt the emission
unit or facility from PSD/NSR, NESHAP or requirements in Nonattainment
Areas (NAA) for the specific pollutant in violation.
In the event the total of all violations utilizing Section 403.121, F.S., exceeds $10,000,
the penalty for these major potential for harm violations is as follows:
Major: Emissions of 150% or
above allowable.
$10,000 to $8,500
B.
Emissions of 115%
to 149% of
allowable.
$8,500 to $7,500
Emissions of 100% to
114% of allowable.
$7,500 to $6,000
Visible Emissions (VE) Violations (Method 9 Or COMS)*
The following visible emission violations are considered major potential for harm:
1.
Major emissions unit for particulate subject to a federally delegated rule or
SIP requirement for visible emissions
In the event the total of all violations utilizing Section 403.121, F.S., exceeds $10,000,
the penalty for these major potential for harm violations is as follows:
30% opacity or more over 15%-29% opacity over 14% opacity or less over
the limit
the limit
the limit
$10,000 to $8,500
$8,500 to $7,500
$7,500 to $6,000
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C.
Circumvention (All or any portion of a control device)
The following circumvention violations are considered major potential for harm:
1.
2.
3.
Major emission unit and the pollutant at issue is one for which the source
is considered major.
Any emission unit subject to federal regulation (including BACT, MACT or
LAER) for the pollutant at issue.
Emission unit subject to RACT for the pollutant at issue.
In the event the total of all violations utilizing Section 403.121, F.S., exceeds $10,000,
the penalty for these major potential for harm violations is as follows:
Failure to install control device;
intentionally operating without control or
intentionally bypassing/disabling control
equipment
$10,000 to $8,500
D.
Failure To Install, Certify Or Maintain Continuous Monitoring Systems
(CMS)
The following continuous monitoring system violations are considered major potential
for harm:
1.
2.
3.
Any pollutant/VE CMS required by federally delegated rules or the SIP.
Any other pollutant/VE CMS required for a synthetic minor source that are
used to assure the source remains minor.
Any other pollutant/VE CMS required for a major emissions unit.
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In the event the total of all violations utilizing Section 403.121, F.S., exceeds $10,000,
the penalty for these major potential for harm violations is as follows:
Not installed within 60 days of
required date.
$10,000 to $9,000
Installed 31-59 days after
required date.
$9,000 to $8,000
Installed within 10 days
after required date
$8,000 to $7,000
And/Or
Not certified within 60 days of
required date.
$9,500 to $9,000
Certified 31-59 days after
required date
$9,000 to $7,000
Certified within 10 days
after required date
$7,000 to $6,500
And/Or
Not properly maintained for
30 days or more.
$9,000 to $8,000
E.
Not properly maintained
for 11-29 days after
required date.
$8,000 to $7,000
Not properly maintained
for a period not
exceeding 10 days.
$7,000 to $5,000
Improper Maintenance Or Operation
The following maintenance and operation violations are considered major potential for
harm:
1.
Failure to properly maintain or operate any pollution control device or
emissions unit or appurtenant equipment which results in emission limiting
standard violation for a pollutant for which an emissions unit is major
source or is subject to federally delegated rules or the SIP.
In the event the total of all violations utilizing Section 403.121, F.S., exceeds $10,000,
the penalty for these major potential for harm violations is as follows:
Equipment completely
inoperative.
$10,000 to $8,500
Equipment operating at reduced
efficiency as evidenced by data collected
from inspection or tests.
$8,500 to $7,500
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F.
Operation Without A Valid Permit
The following construction/operation without a valid permit violations are considered
major potential for harm:
1.
2.
Major emission unit or major source, operating without a valid permit.
Minor emission unit subject to federal delegated rules or the SIP,
operating without a valid permit.
In the event the total of all violations utilizing Section 403.121, F.S., exceeds $10,000,
the penalty for these major potential for harm violations is as follows:
Operating without a valid
permit for more than 90 days.
Operating without a valid
permit for 46 to 89 days.
$10,000 to $8,500
$8,500 to $7,500
G.
Operating without a
valid permit less than or
equal to 45 days.
$7,500 to $6,000
Construction Without A Valid Permit
The following construction without a valid permit violations are considered major
potential for harm:
1.
2.
Major emission unit or major source, constructing without a valid permit.
Minor emission unit subject to federal delegated rules or the SIP,
constructing without a valid permit.
Constructing without a valid
permit.
$10,000 to $8,500
H.
Permit Conditions Limiting Capacity
The following permit condition violations are considered major potential for harm:
1.
Major emission unit with permit conditions which limit emissions by limiting
capacity ( i.e., hours of operation, process weight or quantity, product
quantity, etc) when these conditions are imposed by Federally Delegated
Rules.
2.
Synthetic Non Title V Source unit or facility with capacity limiting
conditions (i.e., hours of operation, process weight or quantity, product
quantity, etc) imposed to avoid Title V designation when violation causes
exceedance of the Title V threshold.
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In the event the total of all violations utilizing Section 403.121, F.S., exceeds $10,000,
the penalty for these major potential for harm violations is as follows:
Exceedance of limit by
greater than 30% of
allowable.
$10,000 to $8,500
I.
Exceedance of limit by
10%-29%.
All others
$8,500 to $7,500
$7,500 to $6,000
Failure To Provide Notification Of Malfunction
The following notification of malfunction violations are considered major potential for
harm:
1.
Any source that fails to notify of a malfunction resulting in emissions
greater than 150% of allowable emissions.
In the event the total of all violations utilizing Section 403.121, F.S., exceeds $10,000,
the penalty for these major potential for harm violations is as follows:
Malfunction discovered by
regulatory agency having not
been reported by the Owner
or Operator
$10,000 to $8,500
J.
Malfunction and
corrective actions
reported more than 48
hours after occurrence.
$8,500 to $7,500
All others
$7,500 to 6,000
Failure To Conduct Required Testing Or Monitoring
The following testing or monitoring violations are considered major potential for harm:
1.
Failure to conduct or timely conduct testing, or to monitor for any pollutant for a
major emissions unit when such testing or monitoring is required, and subject to
federally delegated rules or the SIP.
In the event the total of all violations utilizing Section 403.121, F.S., exceeds $10,000,
the penalty for these major potential for harm violations is as follows:
Monitoring not conducted for
60 days or more. Testing
performed 60 days or more
late.
Monitoring not conducted
for 31 to 59 days. Testing
performed 31 to 59 days
late.
$10,000 to $8,500
$8,500 to $7,500
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Monitoring not
conducted for one to 30
days. Testing
performed one to 30
days late.
$7,500 to $6,000
SECTION 2: VIOLATIONS NOT SPECIFICALLY COVERED BY
SECTIONS 403.121(3)(f) OR 403.121(4), F.S.
Pursuant to Section 5A of the Program Directive DEP 923, Settlement Guidelines for
Civil Penalties, violations that are not specifically listed in Sections 403.121(3)(f) or
403.121(4), F.S. should be handled as follow:
1. Stationary Source and Open Burning
A.
Open Burning
1.
For open burning of prohibited materials, asbestos containing materials or
hazardous waste the penalty is as follows:
Open burning of asbestos containing
materials, prohibited materials or
hazardous waste
$10,000 to $8,500
2.
All other open burning violations should be assessed $500 per day per
violation as provided in 403.121(5) and 403.121(6), F.S.
B.
Malfunctions
Any malfunction which exceeds the allowable time permitted by
Department Rules or Authorization shall be assessed a penalty of $500 per day
as provided in 403.121(5) and 403.121(6), F.S.
1.
C.
Exceedance Of Time For Startup And Shutdown
1.
A startup or shutdown that results in excess emissions for a duration
longer than permitted by Department Rules or without Department authorization
and which results in emissions in excess of 150% of allowable emissions shall be
assessed a penalty as follows:
6 hours or more beyond
permitted timeframe.
$10,000 to $8,500
4 – 6 hours beyond
permitted timeframe.
$8,500 to $7,500
2 – 4 hours beyond
permitted timeframe.
$7,500 to 6,000
2.
Any other startup or shutdown which exceeds the allowable time permitted
by Department Rules shall be assessed a penalty of $500 per day as provided in
Sections 403.121(5) and 403.121(6), F.S.
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Section 3: Procedures For Enforcement Cases That Are Not Settled
A. ELRA NOV (For Cases that are less than or equal to $10,000)
1. Follow the guidance in Chapter 3 of the Enforcement manual and DEP
Directive 923
2. NOTE: all penalties calculated for use in an ELRA NOV must be identical
to that provided in the statute [403.121, F.S.]
B. Case Referral To OGC (For Cases that are greater than $10,000)
Follow the guidance in Chapters 3 and 5 of the Enforcement manual and DEP
Directive 923
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