Court Hears MPA’s Decades-Long Penobscot River Pollution Case

The Maine People’s Alliance and the Natural Resources Defense Council commenced trial in federal district court June 3, 2014 to fight for cleanup of a toxic legacy left behind in Maine’s Penobscot River. For over three decades, the former HoltraChem plant in Orrington, Maine— owned and operated by the corporate predecessor of defendant Mallinckrodt US, LLC—had dumped an estimated six to twelve metric tons of mercury into the river. Mercury is a potent and persistent neurotoxin that is unsafe at even very low levels.

This case follows upon an earlier trial in 2002, in which MPA and NRDC secured an important victory against Mallinckrodt on the issue of liability. Following a hard-fought trial, the district court found that the HoltraChem plant was a dominant source of the mercury contamination in the Penobscot. The First Circuit affirmed this finding on appeal, and the district court ordered an independent study panel to investigate the extent of the contamination and the need for a remediation or cleanup plan.

From 2005 to 2013, the court-ordered study panel conducted a rigorous investigation of mercury contamination in the Penobscot River system. Members of the study panel testified during the first week of the trial that dangerous levels of mercury persist in river sediments, infiltrating the food web, and pose a risk to human health and the environment. The study panelists firmly defended their finding that the river is severely polluted and will remain so for decades to come in the absence of active remediation.

As a number of distinguished scientists testified during the second week of the trial, mercury still saturates the sediments of the Penobscot, posing a serious danger to humans and wildlife communities that depend on the river. The recommendation of the Study Panel and its associated scientists resounded unanimously: active remediation of the river is needed to stop the ongoing endangerment to human health and the environment.

In his trial testimony, Dr. Philippe Grandjean of the Harvard School of Public Health warned that methylmercury poses a significant risk to fetal brain development. Studies have linked fetal methymercury exposure to serious cognitive impairments including lowered IQ, delayed language acquisition, and deficits in memory and concentration. These impairments are, moreover, irreversible. Dr. Grandjean testified that methymercury levels in Penobscot eels, lobsters, and black ducks—species that are caught and consumed by humans—substantially exceed both the methymercury criterion set by EPA and the action level set by the state of Maine.

Other experts—each leaders in their respective fields—presented overwhelming evidence that the HoltraChem plant is the primary source of the legacy mercury contamination that persists in the river; that there is a large, mobile pool of highly contaminated sediment that remains trapped within the estuary; and that this mobile pool is preventing the river from recovering on its own.

During the third week of the trial, MPA and NRDC witnesses testified to the profound human impacts arising from mercury contamination in the Penoscbot. Kenneth “Skeet” Wyman, a local fisherman, described his horror upon learning that he had provided contaminated seafood to his family and tens of thousands of customers. Due to the high mercury levels, the state of Maine recently closed a portion of the Penobscot fishery where Wyman had harvested lobsters and other shellfish for the past 25 years—a closure that Wyman strongly supported despite the loss in income that this meant for his family.

Reuben “Butch” Phillips, a tribal elder of the Penobscot Nation also described the central role of the River in the material and spiritual well-being of the Nation, a community whose fate has been intertwined with the River for hundreds of generations. Richard Judd, a member of both NRDC and the Maine Peoples Alliance, who has lived near the

HoltraChem plant for many years, spoke with gentle eloquence about his close relationship with the river, referring to it as “a treasure for this area” and expressing his hope that it will be cleaned up soon. As the trial moved into the fourth week, Mallinckrodt continued its efforts to evade responsibility for the toxic legacy that it left in the Penobscot River over three decades ago. The company presented a series of experts who challenged the findings and recommendations that the court-appointed Penobscot River Study Group had made after an extensive, eight-year study. Mallinckrodt’s experts, who routinely serve corporate interests with respect to contaminated waste sites, contested evidence of the extent of the mercury contamination, the persistence of that contamination, and the need for active remediation.

Despite the state of Maine’s decision to protect public health by closing part of its lobster fishery, and despite the state’s decision to issue a black duck consumption advisory—decisions based on the Study Panel’s findings regarding the severity of mercury contamination in the Penobscot—Mallinckrodt’s experts insisted that consumption of Penobscot species pose no risk to human health. Challenging the Study Panel’s findings, Mallinckrodt’s witnesses also insisted that there is insufficient data to show harm to birds, fish, and mammals that depend on the river for survival. Demonstrating the same ethos of denial that it has maintained for nearly four decades, the company called upon its witnesses to minimize the risks of leaving toxic mercury in the ecosystem for decades to come.

As the trial wrapped up, the litigation team fought hard to expose the questionable—and often plainly false—bases for the opinions set forth by Mallinckrodt’s hired guns and reinforced the need for the company to pay to clean up their mess and remediate the Penobscot. We expect the judge to rule in the case later this year.