MPA, NRDC Return to Court to Fight for Penobscot River Cleanup; MPA Intervenes for Removal of Dangerous HoltraChem Landfill

On May 7th, lawyers representing the Maine People’s Alliance will return to Federal District Court to argue that corporate polluter Mallinckrodt US LLC should pay to clean up the highly-toxic mercury it dumped into the Penobscot River from the now-closed HoltraChem plant in Orrington. On February 11th, MPA appeared before the Maine Supreme Judicial Court to oppose Mallinckrodt’s effort to leave a dangerous leaking landfill in place at the HoltraChem plant site. Mallinckrodt is appealing a previous ruling in an attempt to once again delay and evade financial and corporate responsibility for creating one of the worst mercury pollution problems in the world.

Long MPA Involvement with Site

These are just the latest actions MPA has taken to stand against this pollution. More than 26 years ago, MPA identified the chlor-alkali plant operating in Orrington as one of the most dangerous industrial sites in Maine. The plant, operated by a number of corporate owners over the years, produced chlorine, caustic soda, and other products, primarily for the paper industry. It used a dirty, outdated process that relied on tons of mercury. During the plant’s initial years of operation from 1967 to 1970 it ran with virtually no environmental controls and dumped tons of mercury into the Penobscot River.

MPA targeted HoltraChem (then known as LCP Chemicals) due to the mercury pollution in the Penobscot River and the five hazardous waste landfills located onsite, advocating for cleanup of past dumping and an end to ongoing emissions. The initial focus was on the significant, immediate threat to human health due to enormous quantities of chlorine stored at the site. MPA computer modeling showed that in certain weather conditions the plant could threaten people’s lives as far as 25 miles away. MPA members successfully organized to force the plant to install an emergency siren to warn residents in the event of a chlorine gas release.

While the Maine Department of Environmental Protection (DEP) directed the plant to undertake studies and collect samples to determine the extent of pollution onsite, the agency ignored the tremendous amount of mercury the plant had dumped into the Penobscot River. After many months of attempting to persuade the DEP to act, MPA teamed up with the Natural Resources Defense Council (NRDC), a national environmental organization with skilled lawyers and scientists, to demand that the DEP order plant owners to investigate the mercury pollution of the Penobscot River. The DEP refused to take action and MPA and NRDC sued the current and past plant owners in April 2000 using a citizen suit provision under the Resource Conservation and Recovery Act (RCRA). Four months after filing the lawsuit in Federal District Court, HoltraChem, the operator of the plant at that time, announced it was closing due to market conditions, essentially a declining demand for chlorine.

MPA, NRDC Lawsuit

MPA and NRDC had to persuade Federal District Court Judge Gene Carter that the HoltraChem plant’s mercury dumping into the Penobscot River “may present an imminent and substantial endangerment to health or the environment.” Mallinckrodt, the only responsible party left among the several former plant owners, hired the Chicago-based law firm Sidley and Austin to fight the ase. The Sidley & Austin website states it employs “more than 1,800 lawyers in 19 offices around the world.” A legal team comprised of three attorneys with Mitchell Bernard tried the case on behalf of MPA/NRDC. Despite the money and legal power arranged against the suit, Judge Carter found in his decision that “methylmercury downriver of the plant, resulting, in part, from Mallinckrodt’s actions at the plant site, may present an imminent and substantial endangerment to public health and the environment.” Carter ordered Mallinckrodt to pay for an independent scientific study and, to ensure the integrity of the study, a three-person study panel was appointed to oversee it. The Penobscot River Mercury Study had threegeneral objectives:

1. To determine the extent of existing harm resulting from mercury contamination to the Penobscot River/Bay system south of the HoltraChem plant;

2. To determine the need for, and feasibility of a remediation plan to effectively address the present effect of such existing harm, if any;

3. To determine the elements and timetable for the execution of the appropriate remediation plan to address the harm existing as a result of the mercury contamination.

What the Penobscot Study Revealed

The study panel found that HoltraChem discharged 6-12 metric tons of mercury into the Penobscot River, much of it during the initial years of operation of the plant. This is a staggering amount. Mercury dumped by the plant has resulted in surface sediments with levels 10-20 times higher than regional background levels. Elevated mercury levels are found extending from Orrington into Penobscot Bay as far as Vinalhaven.

Mercury is the only metal known to biomagnify, which means that it accumulates in animals that are higher up in the food chain. Mercury affects reproduction, the kidneys, and the immune system. It is classified as a developmental neurotoxicant that causes harm to the human central nervous system and is extremely toxic to the developing brain. Methylmercury, the most toxic form, is also known to affect the cardiovascular system and child development. MPA and NRDC’s human health expert, Dr. Philippe Grandjean, testified that a pregnant woman could not eat a single Penobscot River fish in the same measured range of eels tested by Mallinckrodt’s consultant without endangering the health of her fetus

The study authors state, “For some bird and fish species, mercury concentrations are at remarkably high levels, exceeding known toxicity thresholds for these animals.” The study continues: “some bird species living in Mendall Marsh and other contaminated marshes in the Penobscot estuary (sites of high mercury methylation rates) are at risk due to the very high levels of mercury in their tissues.” Maine health officials thought the danger posed by mercury contaminated black ducks sufficient to issue a health advisory warning hunters to limit their consumption of waterfowl meat taken from the “immediate vicinity of Mendall Marsh and from Orrington south to the southern tip of Verona Island.”

Mallinckrodt Refuses to Pay

Despite the overwhelming evidence of the need to clean up the worst mercury hotspots and extensive downriver mercury contamination due to the HoltraChem plant’s pollution, Mallinckrodt has stuck to its consistent pattern of resisting responsibility instead spending millions on lawyers and consultants and continuing to deprive the public of the full use of a magnificent river. Mallinckrodt seeks to prolong the dangers to human health and unnecessarily lengthen the time before people can once again safely eat fish and wildlife from the Penobscot River. MPA objects to Mallinckrodt taking these uses from the people of Maine. MPA’s legal team, once again led by Mitchell Bernard, are diligently preparing for the trial scheduled to begin May 7 in Bangor and which could last until May 30. MPA will argue that the dangers to

human health and the environment demand the pursuit of active remediation of the river, as the Study scientists recommend, and that Mallinckrodt should pay for the cleanup of the mess they have caused.

Meanwhile, MPA will await the decision of the Maine Supreme Judicial Court on whether the DEP order requiring Mallinckrodt to remove landfill #2 from the HoltraChem site and finally begin a full cleanup of the area will stand. Pollutants from the site have already been found to be leaking into local groundwater. Eric Mehnert represented MPA’s position before the Law Court.

MPA members can play a pivotal role in the work to hold Mallinckrodt accountable for its pollution. Contact Penobscot Valley Chapter organizer Amelia at [email protected] to learn how you can get involved. We’ve fought for 26 years to rid the Penobscot River

and the Town of Orrington of the scourge of mercury pollution. Your involvement today can help secure a healthier future for everyone that lives near the Penobscot.