Water District’s VOC Claims Time Barred

On March 2, the U.S. Court of Appeals decided the case of Bethpage Water Dist. v. Northrop Grumman Corp., and affirmed the lower court’s dismissal on New York statute of limitations grounds, the Bethpage Water District’s (BWD) lawsuit seeking damages from Northrop Grumman Corporation (Northrop) for alleged volatile organic compounds (VOC) contamination of the aquifer from which BWD draws drinking water.

For many years, the Grumman Corporation (Grumman) conducted manufacturing operations on a 600 acre site in Bethpage, NY, which is located on Long Island. In 1983, the site was placed on New York’s Registry of Inactive Waste Disposal Sites, and in 1990 Grumman entered into a Consent Order with the New York Department of Environmental Conservation to undertake a remedial action/feasibility study.

In 1994, Grumman entered into a Tolling Agreement with the BWD to address certain VOC contamination exceedances, and agreed to install an air stripping tower to remove VOCs; this agreement also excluded specified forms of damages from the Tolling Agreement. From June 2007 through February 2013, there was considerable activity by BWD related to growing threats to the local groundwater, and an emergency was declared by the local authorities.

Then, on November 18, 2013, the BWD filed a “diversity lawsuit “ against Northrop in federal court alleging negligence, trespass, and nuisance, and sought punitive damages and the recovery of the BWD’s costs in remediating pollution. Northrop filed a motion to dismiss based on the operative New York three-year statute of limitations.

The Court of Appeals held that, as a matter of law, BWD was aware of its injuries well before November 18, 2010, and the cause of action accrued for purposes of the statute of limitations when the injury occurred or was discovered. A companion claim for radium contamination was also dismissed for the same reasons.