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.
Circuit Court of Appeals in Manhattan said the statute of limitations ran out and Bethpage should have filed it’s 2013 lawsuit sooner.
“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.
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.
“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.