Bethpage plume: Residents file notice of lawsuit

A group of residents who allege the Navy and New York State Department of Environmental Conservation have failed to adequately investigate the presence of radioactive materials in Bethpage has put the agencies on notice they intend to sue and seek the intervention of a federal court.

Long Island Pure Water Ltd. last month sent formal notices of intent to sue to the secretary of the Navy, the state DEC commissioner and others, saying the contamination is “causing an imminent and substantial endangerment to health and the environment in Long Island’s sole source aquifer and the drinking water” supplies of Bethpage, South Farmingdale, Massapequa and other communities.

The group, which formed in August to promote water quality protection and has about 40 members, wants a federal judge to order an investigation into radioactive contamination, launch a study to evaluate remedial efforts to reduce risk to public health, and name a master coordinator to oversee the work.

“The [DEC] and the Navy have failed to address the radioactive and other contaminant issues and cannot be relied upon to proceed with the necessary work,” the document said.

Since 1983, the area has been subject to a number of state Superfund program cleanup plans to remove or treat soil and contaminated groundwater plumes generated when the Navy and what is now Northrop Grumman operated on 600 acres in Bethpage from the 1930s to 1990s. The focus has primarily been on removing volatile organic chemicals and polychlorinated biphenyls, or PCBs, but recent detections of radium in groundwater nearby have increased scrutiny.

In the past six months, elevated levels of radium have been found in monitoring wells beneath two Bethpage schools, and a document released by the DEC after Newsday filed a public records request revealed Northrop Grumman had handled radioactive materials at Bethpage.

“There’s a total lack of transparency right now,” said James Rigano, the attorney representing Long Island Pure Water, which is a nonprofit corporation. “Gov. [Andrew] Cuomo and his DEC have failed to investigate the radioactivity in the Grumman plume even though the governor and his DEC have effectively pursued other initiatives involving the groundwater contamination.”

In a statement, DEC spokesman Sean Mahar said the agency does not comment on potential litigation but is “committed to its mission of protecting human health and the environment.”

Lt. Joshua Kelsey, a deputy public affairs officer for the secretary of the Navy, confirmed receiving the notice but said in an email, “we’re not prepared to comment on a potential lawsuit.”

Federal law requires advance notice of lawsuits in cases brought against the government, which means initial steps to litigation are often in the form of a notice of intent.

The Pure Water group, which includes two hydrogeologists who will be paid technical advisers, also seeks to wrest control of investigation and remediation efforts away from the state. Among the remedies sought would be for Rigano to be named a paid administrator or master coordinator to oversee remedial work. Litigation fees are also requested.

Most federal environmental statutes allow for citizen suits and they are commonly used to force agencies to comply with existing law. Naming a master to oversee the work is also allowed, though rare. A special master, for instance, is overseeing hexavalent chromium cleanup in Jersey City after a citizen suit was successful and reaffirmed in 2005.

“It is unusual but the court rules allow for it,” said Edward Lloyd, an environmental law professor at Columbia University School of Law. “It has happened in New Jersey.”

Long Island Pure Water said discoveries of radium in wells near the site and the news that radioactive materials had been handled there should have triggered a reassessment of cleanup strategies and focused investigations on the source of radioactive contamination.

Officials with the state DEC have said they are investigating the source of the radium and that it could be naturally occurring. In the case of the schools, they said the drinking water was not affected and there was no threat to students, teachers or staff.

Additionally, the Pure Water group said the Navy failed to disclose in a report to Congress filed earlier this year about the possible radioactive contamination in the hamlet.

“Until such contamination is remediated, the citizens are at risk of exposure through water and the air in their homes, schools and businesses,” the notice said.

In March 2016, the DEC ordered Northrop Grumman to open up its wells for radium testing and to write a comprehensive report about any radioactive materials that might have been handled on site. It also has asked the defense contractor for more information and is investigating the possible source of the radium found beneath the schools.

Rigano said the agency has not made investigatory documents public.

The planned lawsuit is expected to cite federal acts that deal with hazardous waste sites and cleanup.