The State of New York v. Shore Realty Corp. And Donald Leogrande

This case involves several novel questions about the scope of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9657 (1982) (“CERCLA”), and the interplay between that statute and New York public nuisance law. CERCLA— adopted in the waning hours of the Ninety-sixth Congress, and signed by President Carter on December 11, 1980 — was intended to provide means for cleaning up hazardous waste sites and spills, and may generally be known to the public as authorizing the so-called Superfund, the $1.6 billion Hazardous Substances Response Trust Fund, 42 U.S.C. §§ 9631-9633.

On February 29, 1984, the State of New York brought suit against Shore Realty Corp. (“Shore”) and Donald LeoGrande, its officer and stockholder, to clean up a hazardous waste disposal site at One Shore Road, Glenwood Landing, New York, which Shore had acquired for land development purposes. At the time of the acquisition, LeoGrande knew that hazardous waste was stored on the site and that cleanup would be expensive, though neither Shore nor LeoGrande had participated in the generation or transportation of the nearly 700,000 gallons of hazardous waste now on the premises. The State’s suit under CERCLA for an injunction and damages was brought in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge. The complaint also contained pendent state law nuisance claims, based on both common law and N.Y.Real Prop.Acts.Law § 841 (McKinney 1979). On October 15, 1984, the district court granted the State’s motion for partial summary judgment. Apparently relying at least in part on CERCLA, it directed by permanent injunction that Shore and LeoGrande remove the hazardous waste stored on the property, subject to monitoring by the State, and held them liable for the State’s “response costs,” see 42 U.S.C. § 9607(a)(4)(A). In the alternative the court based the injunction on a finding that the Shore Road site was a public nuisance. Following a remand by this court on December 14, 1984, the district court on January 11, 1985, stated with more particularity the undisputed material facts underlying its decision finding defendants liable for the State’s response costs and clarifying its earlier decision by basing the injunction solely on state public nuisance law. The court also modified its earlier decision by suggesting that CERCLA does not authorize injunctive relief in this case. 1

We affirm, concluding that Shore is liable under CERCLA for the State’s response costs. We hold that Shore properly was found to be a covered person under. 42 U.S.C. § 9607(a); that the nonlisting by the Environmental Protection Agency (“EPA”) 2 of the site on the National Priorities List (“NPL”), 42 U.S.C. § 9605(8)(B), is irrelevant to Shore’s liability; that Shore cannot rely on any of CERCLA’s affirmative defenses; but that, as suggested in the amicus brief filed for the United States and the district court’s supplemental memorandum, injunctive relief under CERCLA is not available to the State. We nevertheless hold that the district court, exercising its pendent jurisdiction, properly granted the permanent injunction based on New York public nuisance law. Moreover, we hold LeoGrande jointly and severally liable under both CERCLA and New York law.

Facts

Some of the most heated arguments on this appeal involve whether certain materi *1038 al facts are undisputed. After careful scrutiny of the record and the district court's supplemental memorandum, we base our decision on the following facts.

LeoGrande incorporated Shore solely for the purpose of purchasing the Shore Road property. All corporate decisions and actions were made, directed, and controlled by him. By contract dated July 14, 1983, Shore agreed to purchase the 3.2 acre site, a small peninsula surrounded on three sides by the waters of Hempstead Harbor and Mott Cove, for condominium development. Five large tanks in a field in the center of the site hold most of some 700,-000 gallons of hazardous chemicals located there, though there are six smaller tanks both above and below ground containing hazardous waste, as well as some empty tanks, on the property. The tanks are connected by pipe to a tank truck loading rack and dockage facilities for loading by barge. Four roll-on/roll-off containers and one tank truck trailer hold additional waste. And before June 15, 1984, one of the two dilapidated masonry warehouses on the site contained over 400 drums of chemicals and contaminated solids, many of which were corroded and leaking. 3

It is beyond dispute that the tanks and drums contain “hazardous substances” within the meaning of CERCLA. 42 U.S.C. § 9601(14). The substances involved — including benzene, dichlorobenzenes, ethyl benzene, tetrachloroethylene, trichloroethylene, 1,1,1-trichloroethene, chlordane, poly-chlorinated biphenyls (commonly known as PCBs), and bis (2-ethyIhexyl) phthalate— are toxic, in some cases carcinogenic, and dangerous by way of contact, inhalation, or ingestion. These substances are present at the site in various combinations, some of which may cause the toxic effect to be synergistic.

The purchase agreement provided that it could be voided by Shore without penalty if after conducting an environmental study Shore had decided not to proceed. LeoGrande was fully aware that the tenants, Applied Environmental Services, Inc., and Hazardous Waste Disposal, Inc., were then operating — illegally, it may be noted — a hazardous waste storage facility on the site. Shore’s environmental consultant, WTM Management Corporation (“WTM”), prepared a detailed report in July, 1983, incorporated in the record and relied on by the district court for its findings. The report concluded that over the past several decades “the facility ha[d] received little if any preventive maintenance, the tanks (above ground and below ground), pipeline, loading rack, fire extinguishing system, and warehouse have deteriorated.” WTM found that there had been several spills of hazardous waste at’ the site, including at least one large spill in 1978. Though there had been some attempts at cleanup, the WTM testing revealed that hazardous substances, such as benzene, were still leaching into the groundwater and the waters of the bay immediately adjacent to the bulkhead abutting Hempstead Harbor. 4 After a site visit on July 18, 1983, WTM reported firsthand on the sorry state of the facility, observing, among other things, “seepage from the bulkhead,” “corrosion” on all the *1039 tanks, signs of possible leakage from some of the tanks, deterioration of the pipeline and loading rack, and fifty to one hundred fifty-five gallon drums containing contaminated earth in one of the warehouses. The report concluded that if the current tenants “close up the operation and leave the material at the site,” the owners would be left with a “potential, time bomb.” WTM estimated that the cost of environmental cleanup and monitoring would range from $650,-000 to over $1 million before development could begin. After receiving this report Shore sought a waiver from the State Department of Environmental Conservation (“DEC”) of liability as landowners for the disposal of the hazardous waste stored at the site. Although the DEC denied the waiver, Shore took title on October 13, 1983, and obtained certain rights over against the tenants, whom it subsequently evicted on January 5, 1984.

Nevertheless, between October 13, 1983, and January 5, 1984, nearly 90,000 gallons of hazardous chemicals were added to the tanks. And during a state inspection on January 3, 1984, it became evident that the deteriorating and leaking drums of chemicals referred to above had also been brought onto the site. Needless to say, the tenants did not clean up the site before they left. Thus, conditions when Shore employees first entered the site were as bad as or worse than those described in the WTM report. As LeoGrande admitted by affidavit, “the various storage tanks, pipe lines and connections between these storage facilities were in a bad state of repair.” While Shore claims to have made some improvements, such as sealing all the pipes and valves and continuing the cleanup of the damage from earlier spills, Shore did nothing about the hundreds of thousands of gallons of hazardous waste standing in deteriorating tanks. In addition, although a growing number of drums were leaking hazardous substances, Shore essentially ignored the problem until June, 1984. See supra note 3.

On September 19, 1984, a DEC inspector observed one of the large tanks, which held over 300,000 gallons of hazardous materials, with rusting floor plates and tank walls, a pinhole leak, and a four-foot line of corrosion along one of the weld lines. On three other tanks, flakes of corroded metal “up to the size and thickness of a dime” were visible at the floorplate level. 5 While defendants now claim that the large tank was not leaking, their denial is untimely; they did not formally dispute the fact before the district court rendered its October 15, • 1984, order. Moreover, defendants’ claim that the pinhole has been patched hardly makes the existence of the pinhole leak a triable issue of fact. In addition, defendants do not contest that Shore employees lack the knowledge to maintain safely the quantity of hazardous chemicals on the site. And, because LeoGrande has no intention of operating a hazardous waste storage facility, Shore has not and will not apply for a permit to do so. Nor do defendants contést that the State incurred certain costs in assessing the conditions at the site and supervising the removal of the drums of hazardous waste.

Cercla

CERCLA’s history reveals as much about the nature of the legislative process as about the nature of the legislation. In 1980, while the Senate considered one early version of CERCLA, the House considered and passed another. See H.R. 7020, 96th Cong., 2d Sess. (1980), reprinted in 2 Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund) 391-463 (Comm.Print 1983) [hereinafter cit *1040 ed as CERCLA Legislative History ]; see also 126 Cong.Rec. 26,757-99 (1980) (debate and passage of H.R. 7020), reprinted in 2 CERCLA Legislative History, supra, at 294-389. The version passed by both Houses, however, was an eleventh hour compromise put together primarily by Senate leaders and sponsors of the earlier Senate version. Unfortunately, we are without the benefit of committee reports concerning this compromise. But see infra note 12. Nevertheless, the evolution of the legislation provides useful guidance to Congress’s intentions. The compromise contains many provisions closely resembling those from earlier versions of the legislation, and the House and Senate sponsors sought to articulate the differences between the compromise and earlier versions. One of the sponsors claimed that the version passed “embodie[d] those features of the Senate and House bills where there has been positive consensus” while “eliminat[ing] those provisions which were controversial.” 126 Cong.Rec. 30,932 (statement of Sen. Randolph), reprinted in 1 CERCLA Legislative History, supra, at 685.

As explained in F. Anderson, D. Mandelker, & A. Tarlock, Environmental Protection: Law and Policy 568 (1984), CERCLA was designed “to bring order to the array of partly redundant, partly inadequate federal hazardous substances cleanup and compensation laws.” 6 It applies “primarily to the cleanup of leaking inactive or abandoned sites and to emergency responses to spills.” Id. And it distinguishes between two kinds of response: remedial actions — generally long-term or permanent containment or disposal programs 7 — and removal efforts — typically short-term cleanup arrangements. 8

*1041 CERCLA authorizes the federal government to respond in several ways. EPA can use Superfund resources to clean up hazardous waste sites and spills. 42 U.S.C. § 9611. 9 The National Contingency Plan (“NCP”), prepared by EPA pursuant to CERCLA, id. § 9605, governs cleanup efforts by “establish[ing] procedures and standards for responding to releases of hazardous substances.” At the same time, EPA can sue for reimbursement of cleanup costs from any responsible parties it can locate, id. § 9607, allowing the federal government to respond immediately while later trying to shift financial responsibility to others. Thus, Superfund covers cleanup costs if the site has been abandoned, if the responsible parties elude detection, or if private resources are inadequate. See F. Anderson, D. Mandelker, & A. Tarlock, supra, at 573. In addition, CERCIA authorizes EPA to seek an injunction in federal district court to force a responsible party to clean up any site or spill that presents an imminent and substantial danger to public health or welfare or the environment. 42 U.S.C. § 9606(a). In sum, CERCLA is not a regulatory standard-setting statute such as the Clean Air Act. Id. §§ 7401-7642. Rather, the government generally undertakes pollution abatement, and polluters pay for such abatement through tax and reimbursement liability. See F. Anderson, D. Mandelker, & A. Tarlock, supra, at 569. 10

Congress clearly did not intend, however, to leave clean up under CERCLA solely in the hands of the federal government. A state or political subdivision may enter into a contract or cooperative agreement with EPA, whereby both may take action on a cost-sharing basis. 42 U.S.C. § 9604(c), (d). And states, like EPA, can sue responsible parties for remedial and removal costs if such efforts are “not inconsistent with” the NCP. Id. § 9607(a)(4)(A). While CERCLA expressly does not preempt state law, id. § 9614(a), it precludes “recovering compensation for the same removal costs or damages or claims” under both CERCLA and state or other federal laws, id. § 9614(b), and prohibits states from requiring contributions to any fund “the purpose of which is to pay compensation for claims ... which may be compensated under” CERCLA, id. § 9614(c). 11 Moreover, “any ... person” *1042 who is acting consistently with the requirements of the NCP may recover “necessary costs of response.” Id. § 9607(a)(4)(B); see also City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1142-43 (D.C.E. D.Pa.1982) (allowing a landowner to maintain a CERCLA action against a hazardous waste generator under section 9607(a)(4)(B)). Finally, responsible parties are liable for “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.” 42 U.S.C. § 9607(a)(4)(C).

Congress intended that responsible parties be held strictly liable, even though an explicit provision for strict liability was not included in the compromise. Section 9601(32) provides that “liability” under CERCLA “shall be construed to be the standard of liability” under section 311 of the Clean Water Act, 33 U.S.C. § 1321, which courts have held to be strict liability, see, e.g., Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 613 (4th Cir.1979), and which Congress understood to impose such liability, see S.Rep. No. 848, 96th Cong., 2d Sess. 34 (1980) [hereinafter cited as Senate Report], reprinted in 1 CERCLA Legislative History, supra, at 308, 341. 12 Moreover, the sponsors of the compromise expressly stated that section 9607 provides for strict liability. 13 See 126 Cong.Rec. 30,932 (statement of Sen. Randolph), reprinted in 1 CERCLA Legislative History, supra, at 685; id. at 31,964 (statement of Rep. Florio), reprinted in 1 CERCLA Legislative History, supra, at 777; see also id. at 31,966 (Department of Justice view of Senate compromise discussing strict liability), reprinted in 1 CERCLA Legislative History, supra, at 780-81. Strict liability under CERCLA, however, is not absolute; there are defenses for causation solely by an act of God, an act of war, or acts or omissions of a third party other than an employee or agent of the defendant or one whose act or omission occurs in connection with a contractual relationship with the defendant. 42 U.S.C. § 9607(b).

Discussion

A. Liability for Response Costs Under CERCLA

We hold that the district court properly awarded the State response costs under section 9607(a)(4)(A). 14 The State’s *1043 costs in assessing the conditions of the site and supervising the removal of the drums of hazardous waste squarely fall within CERCLA’s definition of response costs, even though the State is not undertaking to do the removal. See id. §§ 9601(23), (24), (25). Contrary to Shore’s claims, the State’s motion for summary judgment sought such costs, and Shore had ample opportunity for discovery. That a detailed accounting was submitted only at this court’s request for supplemental findings is immaterial; Shore had an opportunity to contest the accounting but failed to make anything more than a perfunctory objection.

1. Covered Persons. CERCLA holds liable four classes of persons:

(1) the owner and operator of a vessel (otherwise subject to the jurisdiction of the United States) or a facility/ 15 !

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person.

42 U.S.C. § 9607(a). As noted above, section 9607 makes these persons liable, if “there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance” from the facility, 16 for, among other things, “all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan.”

Shore argues that it is not covered by section 9607(a)(1) because it neither owned the site at the time of disposal nor caused the presence or the release of the hazardous waste at the facility. While section 9607(a)(1) appears to cover Shore, Shore attempts to infuse ambiguity into the statutory scheme, claiming that section 9607(a)(1) could not have been intended to include all owners, because the word “owned” in section 9607(a)(2) would be unnecessary since an owner “at the time of disposal” would necessarily be included in section 9607(a)(1). Shore claims that Congress intended that the scope of section 9607(a)(1) be no greater than that of section 9607(a)(2) and that both should be limited by the “at the time of disposal” language. *1044 By extension, Shore argues that both provisions should be interpreted as requiring a showing of causation. We agree with the State, however, that section 9607(a)(1) unequivocally imposes strict liability on the current owner of a facility from which there is a release or threat of release, without regard to causation. 17

Shore’s claims of ambiguity are illusory; section 9607(a)’s structure is clear. Congress intended to cover different classes of persons differently. Section 9607(a)(1) applies to all current owners and operators, while section 9607(a)(2) primarily covers prior owners and operators. Moreover, section 9607(a)(2)’s scope is more limited than that of section 9607(a)(1). Prior owners and operators are liable only if they owned or operated the facility “at the time of disposal of any hazardous substance”; this limitation does not apply to current owners, like Shore. Thus, Shore’s reliance on the holding of the district court in Cadillac Fairview/California, Inc. v. Dow Chemical Co., 14 Envtl.L.Rep. (Envtl.L. Inst.) 20,376 (C.D.Cal. Mar. 5,1984), is inappropriate The Cadillac Fairview court was concerned with a prior owner and predicated its holding solely upon the words of section 9607(a)(2). Id. at 20,378.

Shore’s causation argument is also at odds with the structure of the statute. Interpreting section 9607(a)(1) as including a causation requirement makes superfluous the affirmative defenses provided in section 9607(b), each of which carves out from liability an exception based on causation. Without a clear congressional command otherwise, we will not construe a statute in any way that makes some of its provisions surplusage. See, e.g., United States v. Mehrmanesh, 689 F.2d 822, 829 (9th Cir.1982); National Insulation Transportation Committee v. ICC, 683 F.2d 533, 537 (D.C.Cir.1982). 18 Moreover, Shore again improperly relies on Cadillac Fairview. There, the court did not interpret section 9607(a) to require causation, as defendants claim, but simply ownership “at the time of disposal.” 14 Envtl.L.Rep. (Envtl.L.Inst.) at 20,378. Several other district courts explicitly have declined to read a causation requirement into section 9607(a). See, e.g., United States v. Cauffman, No. CY 83-6318-KN(Bx), slip op. at 2-3 (C.D.Cal. Oct. 23, 1984) (citing other cases).

Our interpretation draws further support from the legislative history. Congress specifically rejected including a causation requirement in section 9607(a). The early House version imposed liability only upon “any person who caused or contributed to the release or threatened release.” H.R. 7020, 96th Cong., 2d Sess. § 3071(a), 126 Cong.Rec. 26,779, reprinted in 2 CERCLA Legislative History, supra, at 438. The compromise version, to which the House later agreed, see 126 Cong.Rec. 31,981-82, reprinted in 1 CERCLA Legislative History, supra, at 821-24, imposed liability on classes of persons without reference to whether they caused or contributed to the release or threat of release. See also S.1480, 96th Cong., 2d Sess. § 4(a), 126 Cong.Rec. 30,900 (Senate version of legislation changed from imposing liability on an “owner or operator” and “any other person who caused or contributed ... to such discharge, release, or disposal” to imposing *1045 liability on four classes of persons, the scheme adopted in the compromise version), reprinted in 1 CERCLA Legislative History, supra, at 485-86. Thus, the remarks of Representatives Stockman and Gore describing the House version containing the causation language, see 126 Cong. Rec. 26,786-87, reprinted in 2 CERCLA Legislative History, supra, at 359-61, on which Shore relies, are inapposite. 19

Furthermore, as the State points out, accepting Shore’s arguments would open a huge loophole in CERCLA’s coverage. It is quite clear that if the current owner of a site could avoid liability merely by having purchased the site after chemical dumping had ceased, waste sites certainly would be sold, following the cessation of dumping, to new owners who could avoid the liability otherwise required by CERCLA. Congress had well in mind that persons who dump or store hazardous waste sometimes cannot be located or may be deceased or judgment-proof. See, e.g., Senate Report, supra, at 16, reprinted in 1 CERCLA Legislative History, supra, at 323. We will not interpret section 9607(a) in any way that apparently frustrates the statute’s goals, in the absence of a specific congressional intention otherwise. See Capitano v. Secretary of Health and Human Services, 732 F.2d 1066, 1076 (2d Cir.1984); Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941, 947 (2d Cir. 1975).

Finally, we need not address whether Shore is also subject to liability under section 9607(a)(2) because some 90,000 gallons of waste were disposed of, apparently by unauthorized tenants, after Shore took title on October 13, 1983. Nor need we decide whether hazardous substances have been “disposed of” after Shore employees entered the property in January, 1984.

2. Release or Threat of Release. We reject Shore’s repeated claims that it has put in dispute whether there has been a release or threat of release at the Shore Road site. The State has established that it was responding to “a release, or a threatened release” when it incurred its response costs. We hold that the leaking tanks and pipelines, the continuing leaching and seepage from the earlier spills, and the leaking drums all constitute “releases.” 42 U.S.C. § 9601(22). Moreover, the corroding and deteriorating tanks, Shore’s lack of expertise in handling hazardous waste, and even the failure to license the facility, amount to a threat of release.

In addition, Shore’s suggestion that CERCLA does not impose liability for threatened releases is simply frivolous. Section 9607(a)(4)(A) imposes liability for “all costs, of removal or remedial action.” The definitions of “removal” and “remedial” explicitly refer to actions “taken in the event of the threat of release of hazardous substances.” See supra notes 7, 8; see also, Senate Report, supra, at 54, reprinted in 1 CERCLA Legislative History, supra, at 361.

3. The NPL and Consistency, with the NCP. Shore also argues that, because the Shore Road site is not on the NPL, the State’s action is inconsistent with the NCP and thus Shore cannot be found liable under section 9607(a). This argument is not frivolous. Section 9607(a)(4)(A) states that polluters are liable for response costs “not inconsistent with the national contingency plan.” And section 9605, which directs EPA to outline the NCP, includes a provision that requires EPA to publish the NPL. Nevertheless, we hold

*1046 that inclusion on the NPL is not a requirement for the State to recover its response costs. 20

The State claims that, while NPL listing may be a requirement for the use of Superfund money, it is not a requisite to liability under section 9607. See New York v. General Electric Co., 592 F.Supp. 291, 303-04 (N.D.N.Y.1984). The State relies on the reasoning of several district courts that have held that liability under section 9607 is independent of the scope of section 9611, which governs the expenditure of Superfund monies, and by extension, section 9604, which governs federal cleanup efforts. See, e.g., id.; United States v. Northeastern Pharmaceutical & Chemical Co., 579 F.Supp. 823, 850-51 (W.D.Mo. 1984) (“NEPACCO”); United States v. Wade, 577 F.Supp. 1326, 1334-36 (E.D.Pa. 1983). These courts have reasoned that CERCLA authorizes a bifurcated approach to the problem of hazardous waste cleanup, by distinguishing between the scope of direct federal action with Superfund resources and the liability of polluters under section 9607. While implicitly accepting that Superfund monies can be spent only on sites included on the NPL, they conclude that this limitation does not apply to section 9607. And it is true that the relevant limitation on Superfund spending is that it be “consistent with” the NCP, 42 U.S.C. § 9604(a), while under section 9607(a)(4)(A), liability is limited to response costs “not inconsistent with” the NCP. This analysis, however, is not so compelling as might be; the distinction between section 9604 and section 9607 blurs for two reasons. First, as we noted above, Congress envisioned section 9607 as a means of reimbursement of monies spent by government on cleanup pursuant to section 9604. The money that the federal government presumably would be spending is Superfund money. That is to say, Congress may have seen section 9607 as equal in scope to sections 9604 and 9611. Second, it is difficult to accept the State’s argument that section 9607’s statement “[njotwithstanding any other provision or rule of law” supports the distinction. Shore’s argument is not based on implying limitations on the scope of section 9604 into section 9607 but on an interpretation of “not inconsistent with” the NCP under section 9607 itself.

Still, we reject Shore’s argument. Instead of distinguishing between the scope of section 9607 and the scope of section 9604, we hold that NPL listing is not a general requirement under the NCP. We see the NPL as a limitation on remedial, or long-term, actions — as opposed to removal, or short-term, actions — particularly federally funded remedial actions. The provisions requiring the establishment of NPL criteria and listing appear to limit their own application to remedial actions. Section 9605(8)(A) requires EPA to include in the NCP “criteria for determining priorities among releases or threatened releases ... for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action.” And section 9605(8)(B), which requires EPA to draw up the NPL, refers to “priorities for remedial action.” Accord 126 Cong.Rec. 30,933 (statement of Sen. Randolph), reprinted in 1 CERCLA Legislative History, supra, at 689; 40 C.F.R. § 300.68(a) (1984). And section 9604, which authorizes and governs federal response actions, reveals the special role of the NPL for federally sponsored remedial actions. Section 9604(c)(3) states that federal remedial actions can be taken only if “the State in which the release occurs first enters into a contract or cooperative agree *1047 ment” with the federal government, thus setting up a joint federal-state cost-sharing and cleanup effort. At the same time, section 9604(d)(1) states that such joint efforts must be taken “in accordance with criteria and priorities established pursuant to section 9605(8)” — the NPL provision. If the NPL criteria and listing were a general requirement for action “consistent with” the NCP, this language would be surplus-age. See supra text accompanying note 18.

CERCLA’s legislative history also supports our conclusion. Congress did not intend listing on the NPL to be a requisite to all response actions. Neither the earlier House nor Senate version included the NPL in the NCP, see S.1480, 96th Cong., 2d Sess. §§ 3(c)(5), 6(a)(2)(B), 126 Cong.Rec. 30,908, 30,913, reprinted in 1 CERCLA Legislative History, supra, at 482-84, 529-30; H.R.7020, 96th Cong., 2d Sess. §§ 3032(b), 3042, 126 Cong.Rec. 26,775, 26,-777, reprinted in 2 CERCLA Legislative History, supra, at 404, 420-23, although the Senate version limited joint federal-state responses to sites on the NPL, see S.1480, 96th Cong., 2d Sess. § 6(a)(2)(B), 126 Cong.Rec. 30,913, reprinted in 1 CERCLA Legislative History, supra, at 529-30; see also Senate Report, supra, at 60 (“To receive reimbursement from the Fund, [joint federal-state] response actions may be undertaken only at facilities or sites which are in accordance with the national priority list____”), reprinted in 1. CERCLA Legislative History, supra, at 367. It is also instructive to note that the Senate Report described the NPL as serving “primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions.” Id. (emphasis added). In reviewing the changes made by the compromise, no- one mentioned that NPL listing would be a requirement for removal action or even a general requirement under the NCP.

Moreover, limiting the scope of NPL listing as a requirement for response action is consistent with the purpose of CERCLA. The NPL is a relatively short list when compared with the huge number of hazardous waste facilities Congress sought to clean up. See 126 Cong.Rec. 30,931 (statement of Sen. Randolph), reprinted in 1 CERCLA Legislative History, supra, at 683-84; id. at 31,964 (statement of Rep. Florio), reprinted in 1 CERCLA Legislative History, supra, at 776. And it makes sense for the federal government to limit only those long-term— remedial — efforts that are federally funded. We hold that Congress intended that, while federally funded remedial efforts be focused solely on those sites on the NPL, states have more flexibility when acting on their own. See Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F.Supp. 283, 290 (N.D.Cal.1984).

Finally, we reject Shore’s argument that the State’s response costs are not recoverable because the State has failed to comply with the NCP by not obtaining EPA authorization, nor making a firm commitment to provide further funding for remedial implementation nor submitting an estimate of costs. See 40 C.F.R. § 300.62 (1984) (describing the states’ role in joint federal-state response actions). EPA designed the regulatory scheme — the NCP — focusing on federal and joint federal-state efforts. See, e.g., id. § 300.6 (defining “lead agency”). Shore apparently is arguing that EPA has ruled that the State cannot act on its own and seek liability under CERCLA. We disagree. Congress envisioned states’ using their own resources for cleanup and recovering those costs from polluters under section 9607(a)(4)(A). We read section 9607(a) (4)(A)’s requirement of consistency with the NCP to mean that states cannot recover costs inconsistent with the response methods *1048 outlined in the NCP. 21 Cf. 126 Cong.Rec. 30,933 (statement of Sen. Randolph) (suggesting that the primary purpose of the NCP was “guidance on cost-effectiveness”), reprinted in 1 CERCLA Legislative History, supra, at 689. Moreover, the NCP itself recognizes a role for states in compelling “potentially responsible parties” to undertake response actions independent of EPA and without seeking reimbursement from Superfund. 40 C.F.R. § 300.24(c); 22 accord 47 Fed.Reg. 31,195 (1982). Thus, the NCP’s requirements concerning collaboration in a joint federal-state cleanup effort are inapplicable where the State is acting on its own. Cf Pinole Point, 596 F.Supp. at 289-90 (holding that supervision by EPA is not a requisite for an action under section 9607(a)(4)(B)). But cf. Artesian Water Co. v. New Castle County, No. 83-854-WKS, slip op. at 19-30 (D.Del. Feb. 14, 1985) (distinguishing between remedial and removal costs and holding that the NCP validly requires governmental approval of remedial actions by private parties seeking recovery under section 9607(a)(4)(B)); Wickland Oil Terminals v. Asarco, Inc., 590 F.Supp. 72, 77-78 (N.D.Cal.1984) (holding that response costs by private party under section 9607(a)(4)(B) cannot be recovered absent supervision by EPA or by a state agency that has entered into a cooperative agreement under section 9604(d), pursuant to the NCP as promulgated by EPA, without distinguishing between remedial and removal actions); Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F.Supp. 1437, 1446-48 (S.D.Fla.1984) (same). Indeed, the kind of action taken here is precisely that envisioned by the regulations. See supra note 22.

4. Affirmative defense. Shore also claims that it can assert an affirmative defense under CERCLA, which provides a limited exception to liability for a release or threat of release caused solely by

an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions.

42 U.S.C. § 9607(b)(3). We disagree. Shore argues that it had nothing to do with the transportation of the hazardous substances and that it has exercised due care since taking control of the site. Who the “third part(ies)” Shore claims were responsible is difficult to fathom. It is doubtful that a prior owner could be such, especially the prior owner here, since the acts or omissions referred to in the statute are doubtless those occurring during the ownership or operation of the defendant. 23 Similarly, many of the acts and omissions of the prior tenants/operators fall outside the scope of section 9607(b)(3), because they occurred before Shore owned the *1049 property. In addition, we find that Shore cannot rely on the affirmative defense even with respect to the tenants’ conduct during the period after Shore closed on the property and when Shore evicted the tenants. Shore was aware of the nature of the tenants’ activities before the closing and could readily have foreseen that they would continue to dump hazardous waste at the site. In light of this knowledge, we cannot say that the releases and threats of release resulting of these activities were “caused solely” by the tenants or that Shore “took precautions against” these “foreseeable acts or omissions.”

B. Injunctive Relief Under CERCLA

Having held Shore liable under CERCLA for the State’s response costs, we nevertheless are required to hold that injunctive relief under CERCLA is not available to the State. See supra note 1. Essentially, the State urges us to interpret the right of action under section 9607 broadly, claiming that “limiting district court relief [under section 9607] to reimbursement could have a drastic effect upon the implementation of Congress’s desire that waste sites be cleaned.” Conceding that section 9607 does not explicitly provide for injunctive relief, the State suggests that the court has the inherent power to grant such equitable relief, citing Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944).

The statutory scheme, however, shows that Congress did not intend to authorize such relief. Section 9606 expressly authorizes EPA to seek injunctive relief to abate “an actual or threatened release of a hazardous substance from a facility.” Implying the authority to seek injunctions under section 9607 would make the express injunctive authority granted in section 9606 surplusage. See supra text accompanying note 18; see also Minnesota v. Northern Securities Co., 194 U.S. 48, 71, 24 S.Ct. 598, 604, 48 L.Ed. 870 (1904) (denying private persons a right to injunctive relief under the Sherman Act because it expressly authorized only the federal government to seek relief); cf. Paine Lumber Co. v. Neal, 244 U.S. 459, 471, 37 S.Ct. 718, 719, 61 L.Ed. 1256 (1917) (holding that section 4 o