Prolonged legal battle over Penobscot River mercury cleanup headed to federal court

Posted May 29, 2014, at 6:15 p.m.
Last modified May 30, 2014, at 3:07 p.m.

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Aerial image of the former HoltraChem facility, left.
Gabor Degre | BDN
Aerial image of the former HoltraChem facility, left. Buy Photo

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BANGOR, Maine — A 14-year legal battle over the cleanup of mercury in the Penobscot River will rev up next week, when a trial begins on a lawsuit filed by a Maine-based citizens group and its national ally against a former owner of the defunct HoltraChem plant in Orrington.

Set to begin June 3 in U.S. District Court in Bangor, the trial is expected to last approximately three weeks, according to Jesse Graham of the Maine People’s Alliance. In 2000, Maine People’s Alliance, along with the Natural Resources Defense Council, filed the civil lawsuit in an effort to force Mallinckrodt US LLC to study how mercury from the Orrington chemical plant affected ecosystems downriver from the site and then to remove the contamination.

Mallinckrodt, a subsidiary of global healthcare products giant Covidien, previously agreed to take responsibility only for the plant itself and a small section of the Penobscot River just south of the site.

Earlier this month, concerns over elevated mercury levels found in lobsters prompted the Department of Marine Resources to close indefinitely a 7-square-mile area of the lower Penobscot River to lobster and crab fishing. The source of the mercury, the level of which is little more than what is found in canned white tuna, had been traced to the defunct HoltraChem plant, according to previously published reports.

The Maine People’s Alliance and the NRDC won a landmark legal victory against the company in 2002, which was found responsible for the pollution. Since then, Mallinckrodt funneled millions of dollars into the river study but also has fought to delay beginning the cleanup phase.

The federal court docket for the case shows 747 entries as of Tuesday and that a number of attorneys involved in the matter have come and gone over the years.

Judge Gene Carter, now retired, ordered a scientific study of the extent of mercury pollution in the Penobscot be conducted and that its finding be used in a second trial — the one starting next week — to determine what Mallinckrodt must do to clean up the damage to the federally protected waters.

At the time, Carter directed each side to come up with a cleanup plan. But the two sides presented drastically different proposals, which prompted Carter to rule in 2003 that an independent study panel be appointed. Two phases of study were conducted, with the final findings submitted in 2013.

As Graham sees it, much is at stake.

“Corporate polluters across America are watching this case like hawks — waiting to see if mega-corporations with deep pockets can break the law and escape justice,” he wrote in a recent op-ed piece for the Island Institute’s Working Waterfront.

“The outcome of the court case will dictate who should pay to clean up the highly toxic mercury dumped into the Penobscot River,” he said. “At stake in this historic trial is citizens’ right to hold corporations — no matter how rich or powerful — fully accountable for the damage they inflict on our environment and public health.”

Mallinckrodt spokesman Ernie Corrigan said the company disagrees with many of the findings in the study.

“At this point, they haven’t demonstrated a need for remediation. That’s what the trial is for,” he said Wednesday.

“It is our position that the remediation is not needed,” he said. “That is our position as well as that of the experts that will testify on our behalf during the trial. All of them are proven experts in their field and will walk through what their findings were. That’s what the judge will take into consideration, along with what the other side offers.”

According to Corrigan, the company has spent an estimated $40 million to address mercury contamination on land and another $20 million so far on the river. Those figures, he said, do not include legal costs.

“People who live in that community and people up and down the river need to know that Mallinckrodt has been on this job since that plant closed, when HoltraChem owned it and padlocked it in 2000 and walked away,” he said.

Orrington Town Manager Paul White declined to comment Tuesday on the upcoming trial, as the town is not directly involved and because he was not familiar with the specifics, though he expected to be briefed on the matter by the town’s legal counsel in the near future. Mallinckrodt recently paid the town $175,000 to buy back 63 acres of contaminated land.

From 1967-1982, HoltraChem produced 23,000 pounds of toxic mercury waste a year as a byproduct of its manufacture of chemicals for papermaking and other industries before the adoption of significant hazardous waste disposal regulations, according to court documents and published reports.

At issue in the upcoming bench trial, however, is the cleanup of mercury from the river itself, court documents show.

The court-ordered scientific study found that 6 to 12 tons of mercury were discharged from HoltraChem into the Penobscot River between 1967 and the early 1970s. Smaller amounts have been released since that time, and at least nine tons of the metal are still in sediments of the upper and lower Penobscot estuary, the study concluded.

In a brief filed in advance of the trial, Mallinckrodt contends the river is less contaminated and is recovering faster than the study indicates. It also contends there is no evidence of unacceptable risk to human health or of significant adverse effects on wildlife caused by the contamination.

A brief filed by the Maine People’s Alliance and NRDC contends the contamination poses a risk to human health and is dangerous to wildlife. It also contends that without a cleanup, the dangerous conditions in the river will remain for decades.

In recent months, Mallinckrodt lost its appeal before the Maine Supreme Judicial Court of a decision from the state’s Business Court that upheld a Board of Environmental Protection plant site cleanup plan the company estimated would cost $130 million to implement.

The BEP’s 2010 plan modified some parts of a 2008 cleanup order issued by the Maine Department of Environmental Protection, saying the company could leave three of the five landfills on-site after excavating the two other landfills and upgrading systems to prevent and detect pollution runoff into nearby groundwater sources.

Mallinckrodt appealed the BEP plan to the business court, and Judge John Nivison upheld the BEP order. Mallinckrodt then appealed to the Maine Supreme Judicial Court, which heard arguments in Portland Feb. 11, 2014.

Judge John Woodcock will preside over the trial, which will take place at the Margaret Chase Smith Federal Building and will run from 8:30 a.m. to 2:30 p.m. each day, with two short breaks and no lunch hour, according to a docket entry in the federal court’s electronic filing system.

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