Florida's environmental cops fine fewer than half as many polluters today less than half as much thanthey did a decade ago, before former Gov. Rick Scott took office and shifted state regulators to a more pro-business posture, state data shows.
Through the first week of December, the Florida Department of Environmental Protection assessed 352 penalties this year, totaling $4.4 million in fines for violating air, water, sewer, petroleum tank and other state environmental regulations.
By comparison, in 2010 DEP assessed 1,249 environmental penalties in Florida, totaling $10.2 million — more than 3 ½-times as many penalties and double thefines assessed this year.
DEP holds that the lower figures prove the success of the agency's mission to help businesses, utilities and other polluters to clean up their acts. But the agency's critics say the steep drop in fines reflects an ever-softening stance on environmental enforcement and permitting in Florida. In the meantime, critics add, the state's sensitive waters, air and other natural resources suffer, with unknown risks and consequences for public health.
"The short answer is the reason it's plummeted is that's what Rick Scott wanted," said Jerry Phillips, executive director with Florida Public Employees for Environmental Responsibility, a nonprofit DEP watchdog group in Tallahassee.
Phillips, a former enforcement attorney for DEP, has asserted for years that the agency is lax on violators. He put out a report earlier this year countering DEP's claim that more than 95% of Florida facilities are compliant. His analysis, for example, found fewer than 42% of the potable water facilities and 52 percent of domestic wastewater facilities in compliance with rules to protect drinking water. In 2011, the agency changed the way it calculates compliance, Phillips says, making the numbers look better. The agency only counts what it deems “significant noncompliance” while omitting other violations, such as failure to report emissions and discharges.
Before Scott took office in 2011, when a utility or business failed an inspection, DEP issued warning letters, ordering them to comply or face potential fines. If they ignored the warning, the agency would send a "notice of violation," and then pursue civil penalties if that notice also failed to bring a facility into compliance.
Under Scott's directive to create a more business-friendly state, DEP began issuing "compliance assistance letters" and reduced environmental permit reviews to just a few days. Not much has changed under Gov. Ron DeSantis, Phillips said.
"It gives you the impression that the department doesn't take this stuff seriously, so why should the permittees?" Phillips asked. "It's anything that they can do to avoid having these facilities identified as not complying with their permits."
Potential penalties that start out big routinely also wind up much smaller, as DEP allows violators to negotiate down fine amounts or put the money back into their operations or pollution prevention projects that likely would have had to be done anyway. The same pattern plays out statewide.
According to DEP data and documents obtained by FLORIDA TODAY:
- Only four violators in Brevard were assessed a combined $12,600 in 2019, with one air pollution violator allowed to offset $3,600 in penalties by putting that amount toward energy efficiency improvements at its facilities. By comparison, 21 violators in Brevard were assessed $73,476 in fines in 2011, and even that was a more than a 50 percent drop in fines and amount levied from 2010.
- Sarasota County Utilities had the largest fine assessed in Florida this year: $624,800, for 35 spills involving several million gallons of treated and untreated sewage. As DEP routinely allows, the utility was given the option of spending 1-½-times the fine amount — $937,200 — on improvements to its facilities, instead of paying the fine.
- Statewide, DEP collected just over $1 million for 329 civil penalties in 2019. Yearly collected and assessed fine amounts differ because fines aren't always collected the same year they are assessed. By comparison, DEP collected only 265 civil penalties totaling $900,484 last year; 231 fines totaling $705,891 in 2017; and 293 fines totaling $2.2 million in 2016.
Brevard's top 2019 fines
The top DEP fine in Brevard County this year was $4,100 in penalties levied against Space Coast Crushers (SCC), in Rockledge for failing to do required yearly air pollution tests. The fine included $2,000 in estimated economic benefit the company gained by failing to do required annual visible emissions tests for five years in a row, according to DEP enforcement documents.
In a Feb. 5 letter to the agency, SCC's consultant, Beatty Environmental Services, Inc., said the incident could have been prevented and blamed DEP for failing to provide "proper guidance and assistance that is expected of the Department. Because of this failure, SCC is paying the price," the letter says. DEP inspectors deemed the site in compliance and didn't bring up the required air testing during a 2012 inspection, the letter notes.
Beach Funeral Home & Cremation Service faced $3,600 in penalties or failing to conduct required yearly emissions tests at its Melbourne funeral home, according to DEP documents. The agency sought $ 2,000 in civil penalties and $1,600 for the economic benefit the company gained by not doing the testing. Instead of paying the fine, DEP allowed the funeral home to put that amount toward installing some energy saving solar attic exhaust fans.
Brevard's third steepest environmental fine this year hit a Sunshine Food Mart on 4570 Dixie Highway in Palm Bay, assessed $3,000 for failing to make repairs, which may have led to a discharge, and other violations.
The only city in Brevard that DEP fined this year was Cocoa Beach. The agency fined the city $2,000 for unauthorized discharges of up to 500,000 gallons of treated sewage effluent to the Banana River on Jan. 17, and up to 300,000 gallons to the Banana River on April 28, DEP records show.
DEP defends its record
DEP officials say fines are only one tool to bring facilities into compliance. Others include solid permitting, inspection and compliance resolution processes.
"Depending on the nature of the violation and circumstances surrounding the event, DEP will determine which measure is best-suited," Dee Ann Miller, a DEP spokeswoman, said via email.
DEP hired 61 additional staff in its regulatory district offices to help inspect sewer plants and other facilities that discharge to rivers and other waters, Miller noted. By year's end, the agency will have completed 2,000 additional inspections, above and beyond its routine compliance inspections, focusing on sewer plants and other facilities with the most potential to pollute waters.
"This will be the first time all of the wastewater and stormwater facilities throughout the state have been inspected in a single year," Miller said.
Miller also points to DeSantis' proposal for a 50% increase over existing fines and increased daily fines until spills are remediated or a state consent order is in place that addresses the violation. Currently, polluters are only fined for the days the spill is happening.
State law outlines more than 75 different penalty categories across multiple environmental programs, with fines ranging from $50 to $50,000, Miller added.
"Governor DeSantis is proposing to raise every single one," she said. "The Governor’s proposal calls for an increase in penalties to improve the deterrent effect of these penalties and incentivize resolving environmental concerns in a timely fashion."
Education instead of fines
DEP administrators say their mission is partly education andnot just punishment for violators. That solves pollution problems more quickly than taking offenders to court, they said. And lower enforcement numbers can mean the agency's other tactics are preventing violations in the first place.
"Civil penalties are intended to be a deterrent and ensure immediate and continued compliance with environmental regulations," Miller said. "The Legislature prescribes the fines applicable to specific violations in statute, many of which have not changed since 2001. For a similar deterrent effect to occur today, the prescribed penalty amounts must be adjusted for inflation to meet 2001 dollar values."
A 2001 state law allowed DEP to calculate most fines based on a list of pre-set penalties for common violations. The agency can then whittle the fine down further based on whether the violator shows good faith, the violation was beyond their control, the violator's ability to pay, their compliance history, and whether they gained an economic benefit from the violation.
For cases expected to be less than $10,000, DEP officials say the outcomes are more efficient, consistent and swifter than civil litigation.
Such cases often make up most of the agency's workload, which DEP critics like Phillips see as a system soft on violators. DEP allows businesses to pump money into pollution preventions that should have been there in the first place, criticsargue. Meanwhile, water quality and public safety problems remain uncorrected for months while DEP negotiates with violators.
Fines that kick in years after a violation occurs also can obscure whether Florida is getting tougher or softer on environmental crime. Phillips says the number of cases opened — whicha decade ago hovered between 1,300 and 2,000 a year for two decades — should have grown as the state's population ballooned. Now DEP only opens a few hundred cases per year, and while the state's population increased, the agency's manpower lagged.
Phillips has long criticized what he sees at DEP as a "traffic ticket" approach.
The agency issues more thorough consent orders, but often even those don't solve the problem, he says.
"It's amazing. There is very little environmental protection here nowadays," Phillips said.
Florida Department of Environmental Protection fines
- In 2010, the Florida Department of Environmental Protection assessed 1,249 environmental fines in Florida, totaling $10.2 million.
- In 2019, the agency assessed 352 fines, totaling $4.4 million.
Assessed DEP environmental fines in Florida (2015 to Dec. 5, 2019):
2019 - 352 fines = $4,424,529.15
2018 - 302 fines = $2,801,482.78
2017 - 157 fines = $3,698,644.56
2016 - 209 fines = $3,990,487.75
Assessed DEP fines in Florida (2008-2011):
2011: 881 fines = $8,306,945
2010: 1,249 fines = $10,171,471
2009: 1,264 fines = $7,100,725
2008: 1,332 fines = $7,286,745
Collected DEP fines in Florida (2015 to Dec. 3, 2019):
Source: Florida Department of Environmental Protection
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