Maine People's Alliance and Nat. v. Mallinckrodt

Decision Date22 December 2006
Docket NumberNo. 05-2331.,05-2331.
Citation471 F.3d 277
PartiesMAINE PEOPLE'S ALLIANCE AND NATURAL RESOURCES DEFENSE COUNCIL, Plaintiffs, Appellees, v. MALLINCKRODT, INC., Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Carter G. Phillips, with whom Joseph R. Guerra, J. Andrew Schlickman, John M. Heyde, and Sidley Austin LLP were on brief, for appellant.

Mitchell S. Bernard, with whom Nancy S. Marks, Eric J. Uhl, and Moon, Moss & Shapiro, P.A. were on brief, for appellees.

Before SELYA and HOWARD, Circuit Judges, and SMITH,* District Judge.

SELYA, Circuit Judge.

In the teeth of two decades of contrary precedent from four circuits, defendant-appellant Mallinckrodt, Inc. asks us to restrict the role of private citizens in the abatement of imminent and substantial threats to the environment and public health. In support of this entreaty, Mallinckrodt presents a gallimaufry of new, hitherto unconsidered arguments. After careful consideration of this asseverational array, we conclude that our sister circuits have adroitly distilled the meaning of section 7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B) — the so-called citizen suit provision. Correctly interpreted, this provision allows citizen suits when there is a reasonable prospect that a serious, near-term threat to human health or the environment exists.1 In such situations, the provision permits remedies consistent with the scope of a district court's equitable discretion.

The district court read the statute in this manner and faithfully applied the law to the facts. Its supportable liability finding, coupled with a choice of remedy that comes within the encincture of its discretion, leads us to reject Mallinckrodt's appeal.

I. BACKGROUND

We rehearse here only those facts that are directly relevant to the issues on appeal, referring readers who hunger for more information to the district court's initial opinion. See Me. People's Alliance v. HoltraChem Mfg. Co., 211 F.Supp.2d 237 (D.Me.2002). This narrative credits the factual findings of the district court to the extent that those findings are not clearly erroneous. See Fed. Refinance Co. v. Klock, 352 F.3d 16, 27 (1st Cir.2003).

From 1967 to 1982, Mallinckrodt, then called International Minerals and Chemicals Corporation, owned and operated a chlor-alkali plant (the Plant) situated on the banks of the Penobscot River in Orrington, Maine. Thereafter, the Plant continued operations under other owners, namely, Hanlin Group, Inc. and HoltraChem Manufacturing Co.,2 until it closed in 2000. During the period of its operation, the Plant deposited tons of mercury-laden waste into the Penobscot River. See Me. People's Alliance, 211 F.Supp.2d at 253. While there have been a number of other significant contributors to mercury in the Penobscot, "Mallinckrodt has been a dominant source." Id. at 255.

In 1986, the Plant's continuous release of mercury led the Environmental Protection Agency (EPA) to file an administrative RCRA action against Hanlin (the Plant's quondam owner). That action resulted in an agreement for corrective measures. Deeming turnabout fair play, Hanlin sued Mallinckrodt for contribution. In a 1991 settlement, Mallinckrodt agreed to pay a portion of the compliance costs imposed by the agreement.

A subsequent enforcement action led to a 1993 consent decree that superseded the earlier agreement. Although not a party to this consent decree, Mallinckrodt, consistent with the Hanlin settlement, paid its share of the compliance costs and participated in ongoing negotiations with government regulators.3 That included working with both EPA and Maine's Department of Environmental Protection (MDEP).

The 1993 consent decree contemplated a tripartite process comprising site investigation, evaluation of possible corrective measures, and remediation. In line with the first phase of this process, Mallinckrodt compiled and submitted a site investigation report. In March of 1997, EPA and MDEP, acting in concert, issued a draft notice of disapproval. Mallinckrodt countered with a supplemental site investigation report but, in 2000, EPA and MDEP again disapproved. Among other things, the regulators instructed Mallinckrodt to study the effects of mercury downriver from the Plant.

Within a matter of months, Mallinckrodt commissioned a study aimed at examining downriver mercury contamination. It conducted a second downriver study during the summer of 2001. Notwithstanding the submission of these studies, however, the district court supportably found that Mallinckrodt made only minimal efforts to pursue the designated line of inquiry and that the decision to forgo more vigorous efforts was deliberate. Id. at 244 & n. 9.

In the midst of this sparring, two environmental groups — the National Resources Defense Council and the Maine People's Alliance — joined forces to commence a citizen suit under RCRA § 7002(a)(1)(B). The plaintiffs alleged that mercury contamination downriver from the Plant "may present an imminent and substantial endangerment to health or the environment." Acknowledging the possibility that remediation might eventually prove to be either unnecessary or infeasible, their principal prayer for relief was that Mallinckrodt be ordered to fund an "independent, comprehensive, scientific study to determine the precise nature and extent of the endangerment."

Mallinckrodt tried on several occasions to derail the suit on the ground that EPA, not the courts, had primary jurisdiction. The district court demurred, holding that the suit would not present any conflict with agency action due to EPA's apparent lack of interest in the lower Penobscot.

The case was reached for trial in March of 2002. By that time, EPA and MDEP had made public, but had not adopted, preliminary media protection standards, potentially applicable to the lower Penobscot. Had those standards gone into effect, no remediation would have been required for the region with which this litigation is concerned.

During a nine-day bench trial,4 one of the plaintiffs' principal experts was Dr. Robert Livingston. The district court found Livingston, an aquatic biologist, to be "particularly credible and persuasive." Id. at 251. Drawing on three main sources — the data gathered under the EPA-ordered site studies, some limited field work, and the scientific literature concerning mercury in aquatic systems — Livingston opined that there might be a serious endangerment to both human health and the environment resulting from mercury contamination in the lower Penobscot. Although believing it "highly likely" that these harms would prove to be both real and severe, he cautioned that he had not yet "done the right research to determine that." Due to the absence of sufficient research, no one could know with certitude "if there is a problem" or "what the problem is." When all was said and done, however, he thought it "highly likely" that localized and targeted remediation would be both necessary and desirable.

The plaintiffs also adduced testimony from other experts, from individuals within their respective memberships, and from EPA and MDEP representatives. A number of defense experts testified as well. After both sides had rested and submitted briefs, the district court issued a thoughtful rescript.

The court found that mercury in aquatic systems is susceptible to being transformed by microscopic organisms into its organic form (known as methylmercury). Id. at 244. Methylmercury is a highly toxic substance which, even in low dosages, is inimical to human health; for example, it "attacks the nervous system, the kidneys, the immune system, and the reproductive system" and is especially damaging to a developing fetus. Id. at 245. Methylmercury is especially pernicious because it is the most bioavailable form of mercury and therefore, is readily accumulated in humans and animals alike. Id. at 244.

Next, the court found that mercury concentration in sediments extracted from the lower Penobscot runs five times higher than in the Kennebec River (which Mallinckrodt's expert identified as an appropriate comparator). Id. at 248. Despite this high concentration, the court wisely recognized that "the mere presence of mercury contaminated sediments is alone not enough to constitute an imminent and substantial endangerment," id., so it proceeded to examine the available data concerning mercury contamination in various species in the lower Penobscot, including benthos, killfish (minnows), lobsters, blue mussels, cormorants, osprey, and eagles. This examination led the court to conclude that "mercury is methylating downriver" and that "methylmercury is bioavailable, entering biota, and biomagnifying throughout the food web." Id. at 251.

The court expressed heightened concern about a region known as Frankfort Flats, which displayed extraordinarily high mercury readings in both sediments and biota. Id. at 252. Frankfort Flats receives drainage from a marsh system, and marshes are considered to be hotbeds of methylation. See id.

When the district court turned to the legal standard for citizen suits under RCRA § 7002(a)(1)(B), it characterized that standard as "lenient." 211 F.Supp.2d at 246. It cited with approval case law emphasizing that RCRA allows such a suit when the putative polluter "may" have caused an imminent and substantial endangerment. Id. at 246-47 (collecting cases). On this basis, the court concluded that the statute's "imminent and substantial endangerment" standard would be satisfied by a "reasonable medical concern for public health and a reasonable scientific concern for the environment." Id. at 252.

Applying this interpretation of the statute to the facts as found, the court determined that Mallinckrodt's disposal activities may have created an imminent and substantial danger and that, therefore, the plaintiffs had carried their...

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