Mallinckrodt told to ‘get on with cleanup’

By Judy Harrison, BDN Staff
Posted May 21, 2009, at 9:35 p.m.

BANGOR, Maine — The commissioner of the Maine Department of Environmental Protection called on the St. Louis-area firm that has been ordered to clean up the former HoltraChem factory in Orrington “to drop its legal maneuvering and get on with the cleanup.”

One day after a federal judge refused to intervene in a legal dispute over what is the best method to clean up the five landfills on the plant grounds, DEP Commissioner David Littell said that Mallinckrodt LLC should get back to dismantling the site.

“It’s been over a decade since they’ve been working on this dismantlement, but they’ve stopped doing it,” he said Thursday. “It’s time to get on with cleaning up this site, which is one of the worst hazardous waste sites in the state.”

In November, the DEP ordered Mallinckrodt, which is a subsidiary of United States Surgical Corp., to begin this month to remove an estimated 360,000 tons of contaminated soil to a special disposal site in Canada at a potential cost of $200 million. But the company sued the DEP in federal court in Bangor, putting the cleanup order on hold.

U.S. District Judge John Woodcock on Wednesday issued his 35-page order granting the state’s motion to dismiss the lawsuit. He heard oral arguments in the case earlier this month after denying in December Mallinckrodt’s motion for a temporary restraining order that sought to halt the DEP’s order to remove the soil.

The lawsuit claimed that the federal government should intervene in the process because Gov. John Baldacci had interfered in the process. In court filings, the company’s attorneys cited memos and e-mails between DEP staff in 2005 stating that Baldacci asked the DEP to pursue the most aggressive cleanup option. Some departmental staffers at the time had supported consolidating all of the contaminated soils on site in a lined landfill.

Woodcock found that because the department’s decision could be appealed to the Board of Environmental Protection and because there was no evidence that Baldacci has communicated with board members, a federal judge could not intervene with a state agency process.

Mallinckrodt has at least two legal options. It could appeal Woodcock’s order to the 1st Circuit Court of Appeals in Boston and-or appeal the DEP’s order to the board. A company spokeswoman Thursday did not say what, if any, legal remedy its attorneys might pursue.

“We are still hopeful the state DEP will reverse its order mandating the unnecessary removal and transportation of 30,000 truckloads of mercury contaminated soil across Maine,” JoAnna Schooler said in an e-mail to the Bangor Daily News. “Before the order, we had been working collaboratively on an environmentally sound solution widely used elsewhere in Maine and the nation. We look forward to resuming that collaborative process, completing the job and speeding economic development.”

Mallinckrodt and other owners of the HoltraChem facility used mercury to produce chemicals for the papermaking process.

Mercury is a bioaccumulative toxin, meaning concentrations of it increase at each level of the food chain. Mercury is particularly dangerous to pregnant women and young children.

Mallinckrodt, which is the sole former owner of the HoltraChem facility that is still in business, has spent more than $35 million removing metallic mercury, mercury sludge and contaminated storage tanks and buildings from the 235-acre site, according to a story published in December in the BDN. The company is also funding a study of mercury contamination in the Penobscot River.

But the company and DEP officials have disagreed about how to deal with the five landfills containing mercury-contaminated sludge and other toxic materials. Mallinckrodt has said the waste should be encapsulated on the site with ongoing monitoring.

Assistant Attorney General Christopher Taub, who argued before Woodcock that the lawsuit should be dismissed, praised the judge’s decision. He said Thursday that the next legal step most likely would be for Mallinckrodt to appeal the DEP’s decision to the board.

“We are very pleased that the federal court rejected Mallinckrodt’s attempt to derail the cleanup process and will now allow Maine’s Board of Environmental Protection to decide how to best deal with this polluted site,” Taub said.

http://bangordailynews.com/2009/05/21/news/bangor/mallinckrodt-told-to-lsquoget-on-with-cleanuprsquo/ printed on September 17, 2014