The Bethpage Water District lawsuit against Northrop Grumman Corp. hit another snag after a federal appeals court affirmed a lower ruling dismissing the case, saying the utility waited too long to seek relief over groundwater contamination.
The three-judge panel from 2nd U.S. Circuit Court of Appeals in Manhattan said the statute of limitations ran out and Bethpage should have filed it’s 2013 lawsuit sooner.
“It’s extremely disappointing, that’s for sure,” said Bethpage Water District Superintendent Mike Boufis of the appeals court’s Friday decision. “As a prudent water purveyor it seems like you’re penalized for taking action to protect better health.”
The lawsuit, which was amended in 2015, sought an unspecified amount to cover costs of existing and future groundwater treatments to remove contamination, including volatile organic chemicals and radium.
Northrop Grumman was “pleased with the court’s ruling,” said Tim Paynter, the defense contractor’s vice president of strategic communication, in a statement.
Paynter said the company is committed to working with regulatory authorities and has spent more than $125 million over the years on remediation efforts.
From the 1930s to the mid-1990s, the U.S. Navy and what is now Northrop Grumman researched, tested and manufactured airplanes and space exploration vehicles, including the Hellcat and Apollo Lunar Module, in Bethpage.
Contamination was first discovered in the 1940s and the site was added to the state Superfund list in 1983. Several cleanup plans are in place to address soil and groundwater contamination plumes.
For years, the water district has tussled with state regulators, the Navy, and Northrop Grumman over how to clean up groundwater and soil contamination traced back to the 600-acre site.
Lawyers plan to appeal for a hearing in front of all 2nd Circuit judges, rather than a three-judge panel, said Michael F. Ingham, general counsel for the Bethpage Water District
At issue is when the three-year clock on claims started, according to the ruling. Northrop Grumman asserted it was when Bethpage knew of an imminent threat and took remedial action before 2010. Bethpage countered the time started in late 2010 when contamination was detected in the water.
The court sided with Northrop Grumman, pointing to dates as far back as 2008 when the district began planning to upgrade treatment at a well site.
“[A] diligent water provider may take action to prepare its intake wells to treat incoming contaminants before actual contact,” the judges wrote in their ruling. “The approach advocated by the district would lead to the odd result of encouraging water providers to allow contamination to reach the wells so that a cause of action could accrue.”
Ingham said the ruling runs counter to a 2013 statute-of-limitations decision out of the same court of appeals regarding contamination from the gasoline additive methyl tert-butyl ether, or MTBE.
“I have two conflicting decisions from the same circuit,” said Ingham, adding “It is not over.”
Over the years the water district has spent $15 to $20 million adding treatment to its affected wells or building new well sites outside of the plume.
The district, which serves 33,000 people, is planning to move all of its well sites to areas outside of plume boundaries by 2026.
“We’re going to continue to move on to do whatever it takes to move out of the plume,” Boufis said.