Bethpage Water Dist. v. Northrop Grumman Corp.

884 F.3d 118
CourtCourt of Appeals for the Second Circuit
DecidedMarch 2, 2018
DocketDocket No. 16-2592-cv; August Term 2017
StatusPublished
Cited by8 cases

This text of 884 F.3d 118 (Bethpage Water Dist. v. Northrop Grumman Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bethpage Water Dist. v. Northrop Grumman Corp., 884 F.3d 118 (2d Cir. 2018).

Opinion

Chin, Circuit Judge:

*119This case involves drinking water contamination caused by the activities of defendants-appellees Northrop Grumman Corporation and Northrop Grumman Systems Corporation (together, "Northrop Grumman") in Bethpage, Long Island. Plaintiff-appellant Bethpage Water District (the "District") sued Northrop Grumman below for negligence, trespass, and nuisance based on groundwater contamination in Bethpage, and seeks damages for the cost of remediation.

Northrop Grumman filed a motion for partial summary judgment, arguing that the District's claims are barred by the three-year statute of limitations found in N.Y. C.P.L.R. § 214-c(2), which governs pollution claims. The magistrate judge (Shields, J. ) issued a report and recommendation ("R&R") recommending that the motion be granted. The district court (Feuerstein, J. ) adopted the R&R.

On appeal, the principal question is when a cause of action for groundwater pollution accrues, so as to trigger the statute of limitations. Northrop Grumman argues that a cause of action accrues when the water provider learns that contamination threatens water quality to such an extent that remedial action must be promptly taken, even if the contamination has not yet reached the water source. The District argues that the statute of limitations does not accrue until contamination is actually detected in the water source itself. We affirm the decision of the district court and hold that the District's claims are time-barred.

BACKGROUND

A. Facts

1. The Pollution and Threat to the District

The District provides drinking water to the residents of the Town of Bethpage ("Bethpage") and its environs from the Long Island Aquifer System. Because the Long Island Aquifer System is the principal drinking water source for the area, it has been classified as a "sole source" aquifer under the Safe Drinking Water Act, 42 U.S.C. § 300f. Although the District employs eight different wells to provide drinking water, only two wells are at issue in this suit: Well 4-1 and Well 4-2 located at Plant 4.

Beginning in the 1930s, the Grumman Corporation ("Grumman") conducted manufacturing activities on its 600-acre property in Bethpage (the "Property"), including manufacturing heavy industrial and military equipment during World War II. In 1994, Grumman was bought by Northrop Corporation.

At some point, volatile organic compounds ("VOCs") from Grumman's property began to contaminate the groundwater *120in Bethpage. The primary VOC contaminating the water was trichloroethylene ("TCE"), which has been linked to liver problems and is a possible carcinogen.1 The Maximum Contaminant Level ("MCL") for TCE is 5 μg/L (micrograms per liter).2 There are three different sites involved in this litigation, known as "Operable Units."3

a. Operable Units One and Two

In 1983, the New York State Department of Environmental Conservation ("DEC") listed the Property, known as the Grumman Aeropsace-Bethpage Facility Site, in the Registry of Inactive Hazardous Waste Disposal Sites.

In 1990, Grumman entered into a Consent Order with DEC to conduct a Remedial Investigation/Feasibility Study ("RI/FS") to analyze contamination at the Property.4 As part of the RI/FS process, DEC identified two sites of contamination: (1) the Property, which it designated as Operable Unit 1 ("OU1"), and (2) the plume of contamination associated with the Property, which it designated as Operable Unit 2 ("OU2").

In 1994, the District and Grumman entered into a tolling agreement (the "1994 Agreement") to address VOC contamination from OU1 and OU2 in Well 4-1 and Well 4-2 at Plant 4. In the 1994 Agreement, Grumman admitted that the "source of the contaminants" at Plant 4 was "located on property owned by Grumman." The Agreement also provided that:

(1) Grumman would pay $1.5 million for an air stripping tower ("AST")5 to remove VOCs and protect Plant 4, up to a concentration of 600 parts per billion ("ppb") total VOCs, and
(2) The District would not make any further demand for pollution remediation at Plant 4 for "contaminants identified to date." App. 16.

The following forms of damages were expressly excluded from the Agreement:

(1) any damages incurred by the District for migration of the existing contamination;
*121(2) any damages incurred by the District caused by the discovery of "new contaminants or an increase in the present levels of the already identified contaminants to a total of 600 [ppb], excluding pollution from sources other than Grumman," App. 15;
(3) any additional costs incurred by the District if the ASTs "become obsolete or require modifications" to address "new drinking water standards," App. 15;
(4) any damages from "the discovery of contaminants in any other part of the Water District not already described," App. 15; and
(5) any damages arising from contamination covered by the Agreement, incurred by the District as a result of "government remediation programs," App. 15.

b. Operable Unit Three

In October 1962, Grumman donated approximately 12 acres of land to the Town, including 3.75 acres that were used between 1949 and 1962 as settling ponds to "dewater ... sludge, including neutraliz[ing] chromic acid waste, from the waste water treatment facility" located at the Property. App. 635. After contamination from the area was found to threaten groundwater, DEC designated the parcel as Operable Unit ("OU 3") in 2005.

2. Remedial Actions

Northrop Grumman's argument turns on when the pollution was detected in the groundwater and the subsequent actions taken by the District to address the threat of pollution. Between June 2007 and February 2013, the threat of groundwater pollution generated a great deal of activity, much of it on the part of the District.

a. Soil Sampling

Beginning in 2007, soil samples taken by environmental consultants indicated the existence and extent of the contamination.

i. Vertical Profile Boring 104

In June 2007, Northrop Grumman's consultant Arcadis took groundwater samples from Vertical Profile Boring 104 ("VPB-104"),6 which showed VOC contamination at 6,300 μg/L threatening the water in Well 4-1 and Well 4-2.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Leogrande v. Re-Ko Enters., Ltd.
221 A.D.3d 882 (Appellate Division of the Supreme Court of New York, 2023)
1077 Madison Street, LLC v. March
954 F.3d 460 (Second Circuit, 2020)
Levin v. Johnson and Johnson
E.D. New York, 2019
Trisvan v. Heyman
305 F. Supp. 3d 381 (E.D. New York, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
884 F.3d 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethpage-water-dist-v-northrop-grumman-corp-ca2-2018.