Defending against Daily Fines and Punitive Damages under CERCLA: The Meaning of without Sufficient Cause
![handle is hein.journals/cjel19 and id is 191 raw text is: Defending Against Daily Fines and
Punitive Damages under CERCLA: The
Meaning of Without Sufficient Cause
J. Wylie Donald*
Under CERCLA,l parties liable for the cleanup of hazardous
waste sites face the onerous responsibility of shouldering those
cleanup costs. In light of that potentially heavy financial burden, it
would be reasonable to expect that some liable parties would seek
all avenues to avoid those costs. One of the primary tools that the
U.S. Environmental Protection Agency (EPA) has to foreclose
those avenues is the availability of punitive damages and daily fines,
which may be assessed on liable parties who do not comply with
administrative cleanup orders issued by the EPA.2 Such penalties
may be imposed if a party fails to comply with the order without
sufficient cause.3
Such penalties cause liable parties to reconsider ignoring a
cleanup order even when they think the order is invalid. More sig-
nificant, however, is the threat such penalties have on the actions
taken by parties receiving a cleanup order. Even if a party believes
itself not liable, and is, in fact, not liable, it may comply with the
order to avoid the potentially crushing burden of such penalties
rather than risk a court finding otherwise.4 The meaning of with-
out sufficient cause becomes critical. What guidance does the
* Associate, McCarter & English, Newark, N.J.; J.D., 1993 Columbia University School of
Law, B.A., 1984 Rice University. The author thanks Kathleen M. Batho for her assistance and
support in preparing this article.
1. Comprehensive Environmental Response, Compensation and liability Act of 1980, 42
U.S.C. §§ 9601-9675 (1988).
2. 42 U.S.C. §§ 9606(b) (1), 9607(c) (3) (1988). Daily fines may be up to $25,000 per day of
noncompliance. 42 U.S.C. § 9606(b) (1). Punitive damages may amount to three times the
cost of cleanup incurred by the government. This is in addition to the liability of the party
for the cleanup costs themselves. 42 U.S.C. § 9607(c) (3). The EPA has stated that u[i]t has
been and continues to be EPA's policy that seeking treble damages in cost recovery actions
against recalcitrant parties who fail to comply with administrative orders under sections 104
or 106 is an important tool and EPA considers its use in appropriate cases. 55 FED. REG.
8666, 8799 (1990).
3. 42 U.S.C. §§ 9606(b) (1), 9607(c) (3) (1988).
4. See Solid State Circuits, Inc. v. United States EPA, 812 F.2d 383, 389 (8th Cir. 1987);
Aminoil, Inc. v. United States EPA (Aminoil I), 599 F. Supp. 69, 73 (C.D. Cal. 1985).](ViewImageLocal?handle=hein.journals/cjel19&div=9&collection=journals&method=preview&ext=.png&size=3)
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Defending against Daily Fines and Punitive Damages under CERCLA: The Meaning of without Sufficient Cause
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