Oyster Bay lawsuit vs. Northrop Grumman over Bethpage park cleanup can continue, judge rules

A federal court judge is allowing parts of Oyster Bay’s lawsuit against Northrop Grumman over the cleanup at Bethpage Community Park to move forward.

The judge concluded the town’s argument “plausibly alleges that the hazardous materials Northrop Grumman deposited at the Park constitute an ‘imminent and substantial endangerment.’”

The 103-page decision, issued May 19 by Judge Nusrat Choudhury, dismissed part of the town’s complaint but allowed the claim under the federal Resource Conservation and Recovery Act, or RCRA, to continue. It also allowed the town to file an amended complaint that includes concerns over hexavalent chromium, a highly toxic substance found during the excavation of 22 concrete-encased chemical drums at the park last year.

 The town’s argument is centered on the claim that Northrop Grumman has failed to properly investigate and clean a section of the 18-acre park, which had served as the toxic dumping grounds for Grumman Aerospace for decades.  The company donated the land that became Bethpage Community Park to Oyster Bay in 1962. A section of the park has been closed to the public since May 2002 after toxic chemicals were discovered there. 

Northrop Grumman did not respond to multiple requests for comment.

'One step closer'

Frank Scalera, the town's attorney, said in a statement the decision “gets the Town one step closer to an ultimate court decision ordering Grumman to clean up the Park under an enforceable schedule.”

Scalera said the court’s ruling to allow the town to include hexavalent chromium in an amended complaint could lead the judge to “order Grumman to remediate hexavalent chromium contamination” and also allows the town to seek information about the chemical through discovery in court.

The state Department of Environmental Conservation in November asked Northrop Grumman to bolster its plan to test for hexavalent chromium after the chemical was found at the park, Newsday reported.

Judith Enck, a former Environmental Protection Agency administrator, said RCRA is a federal law that is commonly used to advance cleanups at active sites or facilities, whereas the more commonly known Superfund program typically targets abandoned locations that are polluted.

She said "the cleanup standards are strong" under the law, adding that the town's "imminent and substantial endangerment" claim is one of the avenues that can prompt enforcement at a property. 

Adrienne Esposito, executive director of the nonprofit Citizens Campaign for the Environment, said Northrop Grumman is “intentionally moving at pre-global warming glacial speed.”

“Any order that speeds up the cleanup is good for the environment and the public,” Esposito said.

Court sparring continues

James Rigano, a Melville-based environmental lawyer who previously represented neighbors who sued over the larger Bethpage plume, said that despite the ruling, it is likely the lawsuit, filed by the town in 2023, will continue in the courts. It is unlikely, he said, Northrop Grumman would settle in the case without DEC intervention.

He said the yearslong cleanup should have previously prompted the court to seek other ways to speed the remediation.

“In my view, the court should appoint a special master to oversee the investigation and the cleanup,” Rigano said.

In April, Northrop Grumman contractors sampled the soil in the ballfield area of Bethpage Community Park. That soil sampling precedes the submission of a plan to remove polychlorinated biphenyls, or PCBs, to the EPA, Newsday reported.

A process known as thermal remediation, which uses electrical currents to heat up volatile organic compounds buried below ground before sucking them out with a vacuum, began in September and is ongoing, officials said.

Last spring, the aerospace giant’s contractors discovered 22 concrete-encased chemical drums buried under the soil in the cordoned-off section of the park. Those drums didn't leak and contained chemicals similar to the toxins found in the surrounding soil.

The two sides remain in court and have sparred over numerous elements of the cleanup and legal process. During an April federal court hearing, the town requested sealed court documents from a past insurance case against Northrop Grumman from around a decade ago, which town attorneys said could shed light on the waste the company disposed of at the park.

Northrop Grumman lawyers said the documents are not relevant to the town’s case.

By Joseph Ostapiuk

joseph.ostapiuk@newsday.com@OstapiukJ