Maine People's Alliance v. Holtrachem Mfg. Co.

• Decision Date: 29 July 2002
• Docket Number: No. CIV. 00-69-B-C.,CIV. 00-69-B-C.
• Citation: 211 F.Supp.2d 237
• Parties: MAINE PEOPLE'S ALLIANCE and Natural Resources Defense Council, Inc., Plaintiffs v. HOLTRACHEM MANUFACTURING COMPANY, LLC and Mallinckrodt Inc., Defendants
• Court: U.S. District Court — District of Maine

211 F.Supp.2d 237

MAINE PEOPLE'S ALLIANCE and Natural Resources Defense Council, Inc., Plaintiffs v. HOLTRACHEM MANUFACTURING COMPANY, LLC and Mallinckrodt Inc., Defendants

No. CIV. 00-69-B-C.

United States District Court, D. Maine.

July 29, 2002.

COPYRIGHT MATERIAL OMITTED

Robert M. Hayes, Esq., Eric UHL, Esq., Moon, Moss, McGill, Hayes & Shapiro, P.A., Portland, ME, Helen M. Maher, Esq., Boies, Schiller & Flexner, LLP, Armonk, NY, Mitchell S. Bernard, Esq., Nancy S. Marks, Esq., Natural Resources

Defense Council Inc., Corinne Schiff, Esq., Natural Resources Defense Council, Inc., Philippe Z. Selendy, Esq., Boies, Schiller & Flexner, New York City, for Maine People's Alliance, Natural Resources Defense Council, Inc., plaintiffs.

Michael Kaplan, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, ME, David P. Rosenblatt, Esq., Dennis J. Kelly, Esq., Paul R. Mastrocola, Esq., Burns & Levinson, Boston, MA, Daniel A. Pileggi, Esq., Roy, Beardsley, Williams & Granger, LLC, Ellsworth, ME, Steven J. Mogul, Gross, Minsky & Mogul, P.A., Bangor, ME, J. Andrew Schlickman, Esq., Susan V. Harris, Esq., John M. Heyde, Esq., James F. Warchall, Esq., Sidley, Austin, Brown & Wood, Chicago, IL, for Holtrachem Manufacturing, Mallinckrodt Inc, defendants.

Holtrachem Manufacturing, c/o Steven R. Guidry, Brusly, LA, Pro se.

R. Justin Smith, Department of Justice Environmental & Natural Resources Div., Washington, DC, for U.S. of America, notice only.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

"When dealing with any non-linear system, especially a complex one, you can't just think in terms of parts or aspects and just add things up and say that the behavior of this and the behavior of that, added together, makes the whole thing. With a complex non-linear system you have to break it up into pieces and then study each aspect, and then study the very strong interaction between them all. Only [in] this way can you describe the whole system."

— Murray Gell-Mann, Nobel Laureate, quoted in T.L. Friedman, THE LEXUS AND THE OLIVE TREE, Anchor Books (2000).

The Maine People's Alliance ("MPA") and the Natural Resources Defense Council, Inc. ("NRDC") have brought this citizen suit under 42 U.S.C. § 6972(a)(1)(B) of the Resource Conservation and Recovery Act ("RCRA"). Responsibility for the implementation and enforcement of RCRA rests principally with the Administrator of the Environmental Protection Agency ("EPA"), 42 U.S.C. §§ 6903(1), 6928, 6973, but the statute also contains a citizen suit provision, which permits private citizens to enforce its provisions in some circumstances. See 42 U.S.C. § 6972. In this case, the remaining Defendant Mallinckrodt Inc., formerly owned and operated a chemical manufacturing facility in Orrington, Maine ("the facility" or "the plant"). The parties have stipulated that the plant, under the ownership of Mallinckrodt and subsequently of others, discharged mercury directly into the Penobscot River and released mercury-tainted air emissions. Mallinckrodt is involved in an ongoing regulatory process with the EPA and the Maine Department of Environmental Protection ("MDEP") that is aimed at addressing mercury contamination stemming from the plant site. Though it is anticipated in some quarters that this process will generate a remediation plan for the plant site and an area of the Penobscot River adjacent to the plant known as "the southern cove," as of trial no "media protection standards" were finalized from that undertaking. Mallinckrodt has agreed, however, to take certain steps to remediate the plant site as well as the southern cove. The remediation plan being considered does not address the Penobscot River south of the plant. Tr. 2A at 17.

At trial, the evidence focused on the status of the Penobscot River south of the plant and the upper Penobscot Bay ("downriver"). Plaintiffs assert that mercury-containing water discharge and air emissions from the plant, under Mallinckrodt's ownership, have contaminated the lower Penobscot River, creating an imminent and substantial endangerment to the health and environment. Plaintiffs seek injunctive relief, in the form of an order requiring that Mallinckrodt undertake an independent scientific study of mercury contamination in that portion of the Penobscot downriver of the plant and to develop and implement a remediation plan. See 42 U.S.C. § 6972(a) (authorizing district courts "to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste . . ., to order such person to take such other action as may be necessary, or both."); see also Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996).

I. FACTS

The following facts are either stipulated by the parties or found by the Court based on the evidence presented at trial.

A. The Ownership History of the Plant

The chlor-alkali plant in Orrington, Maine that is the subject of this action was built in 1967. See Joint Ex. 65 ¶ 1. From December 9, 1967 to April 30, 1982, Mallinckrodt Inc., or one of its affiliates (collectively "Mallinckrodt") owned and operated the plant and the 240-acre site on which it is located on the banks of the Penobscot River. See Joint Ex. 65 ¶ 1. Mallinckrodt Inc., then known as International Minerals and Chemical Corporation ("IMC"), was the first entity to own the plant.¹ See Joint Ex. 65 ¶ 1. From 1982 to 1994, the plant was owned and operated by Hanlin Group, Inc. ("Hanlin") (d/b/a LCP Chemicals and Plastics, Inc.). See Joint Ex. 65 ¶ 3. In 1991, Hanlin and its related companies filed a voluntary bankruptcy petition pursuant to Chapter 11 of the Bankruptcy Code.² See Joint Ex. 65 ¶ 3. Defendant HoltraChem Manufacturing Company, LLC. ("HoltraChem") owned and operated the plant from 1994 until the plant ceased operation in September 2000.³ See Joint Ex. 65 ¶ 4.

B. Mercury Releases During Mallinckrodt's Ownership of the Plant

The plant began operation on December 9, 1967. See Joint Ex. 64 ¶ 1. Peter DeAngelis was responsible for operation of the plant from its start up through April 30, 1982, the full period of Mallinckrodt's ownership and operation of the plant. See Joint Ex. 64 ¶ 1. The facility production process utilized mercury; there were approximately 82 tons of mercury on site at any one time. See Joint Ex. 64 ¶ 2. Mercury losses from the facility from December 1967 into June 1970 were a major economic concern for the plant. See Joint Ex. 64 ¶ 3. Mr. DeAngelis directed A.L. MacMillan, a plant employee, to estimate mercury losses from the facility. See Joint Ex. 64 ¶ 3. Mr. MacMillan prepared a memorandum dated March 18, 1970, estimating average daily mercury production losses at 107 pounds, including 19 pounds of mercury daily lost through brine sludge, an unknown quantity of which was recycled back into the system.⁴ See Joint Ex. 64 ¶ 3.

The plant sent mercury-contaminated brine sludge into its sewer, then through the facility's outfall directly into the Penobscot River, every day, continuously, from December 9, 1967, into June 1970. See Joint Ex. 64 ¶ 4. The plant did not attempt to estimate mercury concentration in brine sludge from 1967 to 1982, and, although Mr. DeAngelis is unaware of information about mercury concentration in the facility's brine from 1967 to 1982, mercury discharges declined over time. See Joint Ex. 64 ¶ 4.

The State of Maine did not know from December 1967 into June of 1970 that the facility was discharging mercury to the Penobscot River. See Joint Ex. 64 ¶ 5. The facility did not state on its application for a waste discharge license that it was discharging mercury, because the facility first became aware of laboratory results showing mercury in its effluent in April 1970. See Joint Ex. 64 ¶ 5. Mallinckrodt constructed Mac's Pond, the first landfill on the site, around June 15, 1970. Mac's Pond was located on a downgrade between the facility and the Penobscot River. See Joint Ex. 64 ¶ 7. Until the creation of Hickel's Pond in July 1970, the facility put brine sludge in Mac's Pond, which was open and unlined. See Joint Ex. 64 ¶ 7. Mr. DeAngelis believes that the plant's own estimate of 1.5 to 2.5 pounds of mercury per day in the effluent discharged through the facility's outfall is fairly accurate for the period from the plant's startup to the construction of Mac's Pond, based on the April 1970 laboratory results. See Joint Ex. 64 ¶ 6. However, this estimate does not include mercury discharged through air emissions or groundwater and Mallinckrodt admits that more mercury was discharged from the through air emissions than through the facility outfall. See Joint Ex. 64 ¶ 6.

On July 27, 1970, the United States brought an action against Mallinckrodt.⁵ See Joint Ex. 64 ¶ 8. The complaint alleged that effluent waste daily and continuously discharged to the Penobscot River "contain[ed] significant quantities of mercury or mercury compounds suspended in solution."⁶ See Joint Ex. 64 ¶ 8. In response to the federal suit, in July 1970 the facility constructed Hickel's Pond to divert process waste. See Joint Ex. 64 ¶ 9. Hickel's Pond, which was later lined, was located close to the Penobscot River, on a down slope from the plant buildings. See Joint Ex. 64 ¶ 9. Starting in late August 1970, the United States and the facility both took samples of sediment from the Penobscot River near the plant outfall, including one set that Mr. DeAngelis took himself. See Joint Ex. 64 ¶ 10. These were the first sediment samples that the plant took in the Penobscot River.⁷ See Joint Ex. 64 ¶ 10.

Following an EPA request that the facility remove mercury deposits from the Penobscot River near the site, T.W. Beak, one of Mallinckrodt's consultants, issued a report dated March 21, 1972, recommending no sediment removal, but proposing an environmental mercury survey for the summer of 1972. See Joint Ex. 64...