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Changes on the Horizon to PADEP’s Air Quality Civil Penalty Policies
The Pennsylvania Department of Environmental Protection (PADEP) is planning to make substantive revisions to its air quality civil penalty policies in early 2026 that will, among other changes, significantly increase the amount of base civil penalties for air quality violations. The policies that are being revised include the following: the Guidance for Application of Regional Civil Assessment Procedures; the Compliance Assurance Policy for Cement Kilns with Continuous Emission Monitoring Systems (CEMS); the Compliance Assurance Policy for CEMS on Fluid Catalytic Cracking Units; and the Compliance Assurance Policy for CEMS on Combustion Units (collectively referred to as the Policies).
There are four noteworthy changes. First, PADEP is proposing to add provisions to the Policies that would automatically increase civil penalties for inflation. After January 1, 2028, and every two years thereafter, PADEP proposes to apply an inflation adjustment multiplier to penalties calculated under these Policies based on the Consumer Price Index for All-Urban Consumers. The inflation adjustment would not apply to the economic benefit of noncompliance or the cost to PADEP portions of the penalty.
Second, PADEP is proposing to increase the civil penalty amounts for each category of violation under the Policies. The amount of the increase depends on which policy is being updated. For example, under the applicable Compliance Assurance Policy, PADEP is proposing to increase the visible emission and data non-availability penalties applicable to cement kilns with CEMS by 100 percent, versus a 50 percent increase for emissions and data availability violations for combustion units with CEMS. PADEP is generally proposing a 40 percent increase across all violation categories in the Guidance for Application of Regional Civil Assessment Procedures. Civil penalties remain capped at the statutory maximum of $25,000 per day per violation.
Third, PADEP is proposing to modify the way in which emissions-related civil penalties are calculated under the Guidance for Application of Regional Civil Assessment Procedures. Under the proposed changes, the amount of the civil penalty for excess nitrogen oxide and volatile organic compound emissions will no longer be based on whether the violations occurred during ozone or non-ozone season and instead PADEP will apply a set dollar amount per pound based on the attainment classification of the area in which the emissions occurred. PADEP is also proposing to include a new alternative methodology for calculating civil penalties for hazardous air pollutant (HAP) emissions for sources that have annual HAP emission limits less than 5 tons per year or short-term emission limits that are equivalent to 5 tons per year or less when expressed on an annual basis. Under this alternative approach, penalties would be calculated based on the percentage of the actual emission rate over the standard, as opposed to the amount of excess emissions, generally resulting in lower civil penalties.
Lastly, PADEP is proposing to add to the Guidance for Application of Regional Civil Assessment Procedures methods for calculating violations for incomplete reports or notifications and for late permit fees.
Copies of the revised draft Policies are available on the Air Quality Technical Advisory Committee website. If you would like to learn more about the proposed changes and how they may impact the Department’s calculation of civil penalties, please reach out to MGKF’s Jessica Hunt.
