MANHATTAN (CN) – There is no dispute that decades of industrial work contaminated the water in Bethpage, but the Second Circuit ruled Friday that the Long Island community waited too long to seek damages from Northrup Grumman.
Clocking in at 32 pages, the opinion notes that the Bethpage Water District waited until 2013 to file suit despite learning between 2007 and 2009 about the groundwater contamination.
The water district sought relief from the Manhattan-based federal appeals court after U.S. District Judge Sandra Feuerstein dismissed its case in the Eastern District.
Affirming dismissal of the case Friday, the Second Circuit agreed that he districtʹs claims are barred by the three‐year statute of limitations.
Indeed the district took steps itself to treat the water in November 2009 by installing a granular-activated carbon-polishing system at the plant.
“That is the latest date when the [applicable statute of limitations] period began to run,” U.S. Circuit Judge Denny Chin wrote for a three-person panel.
Chin also noted that the statute at issue “strikes a generous balance between the harsh application of the common law (which would have set accrual of plaintiff’s claims somewhere between 1930 and 1996), and allowing those claims to accrue upon discovery of injury.”
Alani Golanski, an attorney for the water district with the firm Weitz and Luxenberg, said in a phone interview Friday that his client should not be punished for prioritizing clean water over legal activity.
The Bethpage Water District was “seeking to take preventative remedial action and they were not yet injured,” Golanski said. “They had previously been massively injured by other contaminants from other sources, and so they well appreciated the danger. And now they’re being penalized for that appreciation of the danger.”
But Friday’s ruling denied that this is what the court has argued.
“The court’s holding here does not suggest, as argued by the water district, that it should have delayed taking action to protect the water supply,” Chin wrote. “Indeed, as a responsible water provider, it was undeniably in possession of facts requiring such action. Those facts also, however, triggered the running of the statute of limitations. Simultaneous with its 2009 actions, [the statute of limitations] required BWD to commence its lawsuit. It failed to do so, and cannot now credibly claim that it lacked sufficient knowledge for the limitations period to begin.”
Golanski noted that his team believes that the court “misconstrued” the statute of limitations, and that they will seek en banc review.
Mark Chertok, an attorney for Northrop Grumman with the firm Sive, Paget & Riesel, declined to comment Friday afternoon.
The Bethpage Water District has not responded to a request for comment.