## Facts

- Shore Realty Corp. purchased a waterfront property in Glenwood Landing, New York for development.
- The site contained nearly 700,000 gallons of hazardous substances in underground tanks and numerous drums.
- Some substances were toxic and carcinogenic; chemicals were leaching into groundwater and nearby waters.
- Tanks and drums were leaking and corroding, creating both an actual release and a threat of further release.
- Shore’s principal officer and stockholder, Donald LeoGrande, knew at acquisition that hazardous waste was stored on the property and that cleanup would be expensive.
- Neither Shore nor LeoGrande generated or transported the hazardous substances to the site.

## Issues

1. Whether a current owner/operator that did not dispose of hazardous substances is a liable “covered person” under CERCLA § 107(a) for state-incurred response costs.
2. Whether a state may obtain injunctive relief under CERCLA compelling cleanup.
3. Whether absence of National Priorities List listing bars a state’s CERCLA response-cost recovery.
4. Whether a permanent cleanup injunction is proper under New York public nuisance law against the corporate owner and its controlling officer.

## Decision

- Affirmed imposition of CERCLA response-cost liability against Shore as a current owner/operator of a facility with a release or threatened release.
- Held CERCLA does not authorize a state to obtain injunctive relief compelling cleanup; such injunctive authority is reserved to the federal government under the statute’s enforcement provisions.
- Held non-listing on the National Priorities List does not bar a state’s CERCLA cost-recovery action.
- Affirmed the permanent injunction compelling removal of hazardous waste as valid under New York public nuisance law, independent of CERCLA.
- Affirmed personal liability for LeoGrande as an “operator” under CERCLA and as a person in control responsible for abating a public nuisance under New York law, permitting joint and several liability with Shore.

## Legal Principles

- CERCLA § 107(a)(1) imposes strict liability for response costs on current owners and operators of facilities from which hazardous substances are released or threaten release, without requiring proof that the owner caused the contamination.
- CERCLA affirmative defenses are limited and construed narrowly; acquisition with knowledge of contamination defeats an “innocent owner” position.
- A state may recover appropriate CERCLA response costs even if the site is not on the National Priorities List.
- CERCLA’s injunctive cleanup authority is not available to states in cost-recovery actions; states must rely on state-law remedies to obtain cleanup injunctions.
- Under New York public nuisance law, owners and controlling persons responsible for maintaining conditions that endanger public health or the environment may be compelled to abate the nuisance through equitable relief.

## Conclusion

The Second Circuit held that a current owner/operator can be strictly liable under CERCLA for state response costs despite not causing the contamination, that states cannot obtain CERCLA cleanup injunctions, and that states may instead compel abatement through state public nuisance law, including against controlling corporate officers.


New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985)