Mallinckrodt LLC v. Littell

• Decision Date: 20 May 2009
• Docket Number: No. CV-08-420-B-W.,CV-08-420-B-W.
• Citation: 616 F.Supp.2d 128
• Parties: MALLINCKRODT LLC, et al., Plaintiffs, v. David P. LITTELL, in his capacity as Commissioner of Maine Department of Environmental Protection, et al., Defendants.
• Court: U.S. District Court — District of Maine

616 F.Supp.2d 128

MALLINCKRODT LLC, et al., Plaintiffs, v. David P. LITTELL, in his capacity as Commissioner of Maine Department of Environmental Protection, et al., Defendants.

No. CV-08-420-B-W.

United States District Court, D. Maine.

May 20, 2009.

Jeffrey D. Talbert, Preti, Flaherty, LLP, Sigmund D. Schutz, David B. Van Slyke, Michael Kaplan, Preti, Flaherty, Beliveau, Pachios & Haley, LLP, Portland, ME, for Plaintiffs.

Peter B. Lafond, Christopher C. Taub, Office of the Attorney General, Augusta, ME, for Defendants.

ORDER ON MOTION TO DISMISS

JOHN A. WOODCOCK, JR., Chief Judge.

Mallinckrodt LLC, corporate descendant of a firm previously involved in the production of chemicals used in the manufacture of paper, brings this action against the Maine Department of Environmental Protection (MDEP), the Commissioner of the MDEP (Commissioner), and the Maine Attorney General (Attorney General) to enjoin enforcement of an administrative order (Order) directing remedial action at a former manufacturing facility and landfill area.¹ Before the Court is Defendants' motion to dismiss on abstention grounds or, alternatively, for failure to state a claim. Defs.' Mot. to Dismiss Pls.' First Am. Compl. (Docket # 30) (Defs.' Mot.). Because the elements mandating Younger abstention are satisfied and no exception applies, the Court grants the motion.

I. BACKGROUND²

A. The Site

In 1967, a corporate predecessor to Mallinckrodt began operating a manufacturing facility in Orrington, Maine (the Site), adjacent to the Penobscot River. First Am. Compl. ¶ 50 (Docket # 29) (Am.Compl.). The facility's primary purpose was to produce chemicals used in Maine's paper mills. Id. ¶ 60. A by product of the chemical production process was brine sludge, a waste product containing mercury and other contaminants, which the facility primarily disposed in five landfills at the Site. Id. ¶¶ 61-63.

In 1982, the Site was sold to Hanlin Group, Inc. (Hanlin). Id. ¶ 52. In 1986, the federal Environmental Protection Agency (EPA) began to take measures to address contamination near the Site. Id. ¶ 65. In 1991, a corporate predecessor of Mallinckrodt entered into a Settlement Agreement with Hanlin to resolve a related lawsuit over responsibility for the contamination; the Agreement bound Mallinckrodt's predecessor to pay a portion of the investigation and clean-up costs. Id. ¶ 66. In 1993, the EPA and Hanlin entered into a Consent Decree under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., requiring a phased study of the Site, development of possible corrective measures, and, ultimately, final remedial measures. Id. ¶¶ 67-70.

In 1994, Hanlin declared bankruptcy, and the Site was sold to HoltraChem Manufacturing Company, LLC (HoltraChem); HoltraChem thereby succeeded to Hanlin's responsibilities under the Consent Decree. Id. ¶¶ 54, 71. In 1997, the EPA and the MDEP entered into a Memorandum of Agreement under which the EPA retained authority for determining the remedy at the Site. Id. ¶¶ 75-76. From 1995 through 2000, HoltraChem and Mallinckrodt worked with the MDEP and the EPA to take remedial measures towards implementing the Consent Decree. Id. ¶¶ 77-85. HoltraChem ceased operation in 2000 and dissolved in 2001, leaving Mallinckrodt solely responsible for implementing the Consent Decree. Id. ¶¶ 55-56, 71-72.

B. Politicization of the Site and the MDEP Order

Following HotraChem's dissolution, Mallinckrodt continued to take steps towards implementing the Consent Decree. Id. ¶¶ 86-101. On May 27, 2003, Mallinckrodt completed and submitted to the MDEP and the EPA a Corrective Measures Study (CMS) evaluating remedial options for the Site. Id. ¶ 90. After receiving comments from the MDEP and the EPA, Mallinckrodt submitted a Revised CMS evaluating and ranking clean-up options. Id. ¶¶ 91-92. Among the options, the Revised CMS recommended stabilizing and capping the landfills. See id. ¶ 104.

On November 22, 2004, the MDEP requested that Mallinckrodt further examine two alternatives to the remedy Mallinckrodt recommended in the Revised CMS. Id. ¶ 99. After conducting the requested analysis, a consulting firm acting on behalf of Mallinckrodt concluded that the Revised CMS recommendation remained preferable because the two alternatives would cause unnecessary adverse environmental consequences and would endanger neighboring residences and the food chain, and, compared to the consulting firm's recommended alternative, neither remedy would more effectively reduce discharges and exposure to the public. Id. ¶¶ 100-01, 104. Documents generated by MDEP technical staff members indicate that they also favored stabilizing and capping the landfills. Id. ¶¶ 102-113.

Support for stabilization and capping was not, however, unanimous. The Maine People's Alliance and other groups pressured the Governor's Office and the MDEP to excavate and remove all mercury from the Site. Id. ¶¶ 114-17. At a meeting on August 29, 2005 among the Governor, the Commissioner, and the Director of the MDEP's Bureau of Remediation and Waste Management, the Governor directed the MDEP to pursue this alternative remedy. Id. ¶¶ 118-21. To date, no study has demonstrated that the remedy favored by the Governor, excavation and removal, will provide superior protection to the public or the environment when compared with the remedy recommended by the Revised CMS, stabilizing and capping. Id. ¶¶ 123-27.

Since 2003, Mallinckrodt has implemented a multi-phase MDEP-approved plan for dismantling and removal of buildings and equipment at the Site. Id. ¶¶ 128-33. On July 2, 2008, the MDEP informed Mallinckrodt that it "was making good progress on completing the current phase of the dismantling work." Id. ¶ 134. Mallinckrodt has continued to work according to the approved plan, and there is evidence that contaminant levels at the Site are declining. Id. ¶¶ 135-41. Mallinckrodt states that "[t]here are no exigent environmental or other circumstances impacting the Site that require emergency action." Id. ¶ 142.

Nevertheless, on September 11, 2008 the MDEP informed Mallinckrodt that it was about to issue an administrative compliance order requiring Mallinckrodt to implement the Governor's preferred remedy—excavation of contaminated soil at all five landfills and removal to Canada for disposal, id. ¶ 143, and on November 24, 2008 the Commissioner signed an order to this effect. Id. ¶¶ 146-48. The next day the Bangor Daily News ran an article reporting on the Order, id. ¶ 150, and the Commissioner participated in a radio interview discussing the Order. Id. ¶ 151. The Commissioner served the Order on Mallinckrodt on December 5, 2008 pursuant to 38 M.R.S.A. § 1365(1). Id. ¶¶ 2, 152.

C. Mallinckrodt's Response

On the same date it received the Order, Mallinckrodt filed this action in federal court against the MDEP, the Commissioner, and the Maine Attorney General challenging the constitutionality of various aspects of Maine's Uncontrolled Hazardous Substances Sites Act, 38 M.R.S.A. §§ 1361 et seq., and seeking an injunction to prevent Defendants from enforcing the Order and a declaratory judgment that the Order is unlawful. Compl.; Am. Compl.³ Also on December 5, 2008, Mallinckrodt moved for a temporary restraining order (TRO). Mot. for TRO and Prelim. Inj. (Docket # 4). On December 8, 2008, the Court denied Mallinckrodt's TRO motion for failure to establish the potential for irreparable harm. Order Denying Mot. for TRO (Docket # 14). On December 19, 2008 Mallinckrodt filed a timely appeal of the MDEP Order with the MDEP Board of Environmental Protection (the Board) and simultaneously requested that the Board stay the administrative proceeding pending the outcome of its federal lawsuit. Defs.' Mot. at Attach. 1 (Docket # 30-2); Pls.' Mem. in Opp'n to Defs.' Mot. to Dismiss Pls.' First Am. Compl. at 4 (Docket # 33) (Pls.' Opp'n).

Meanwhile, on December 31, 2008, the Defendants moved to dismiss Mallinckrodt's Complaint. Defs.' Mot. On January 9, 2009, Defendants opposed Mallinckrodt's stay request before the Board, noting that a motion to dismiss had already been filed in the federal matter. Pls.' Opp'n at Attach. 1 (Docket # 33-2) (Stay Order). Nevertheless, on January 16, 2009 the Board granted the stay:

In the interest of resource economy, and without speaking to the merits of the substantive issues raised by either Mallinckrodt or the Commissioner in their filings with the U.S. District Court . . . the Board hereby grants an administrative stay of its proceedings in the matter of the appeal of the Commissioner's Order until the U.S. District Court rules on the Commissioner's motion to dismiss . . . . The Board will re-evaluate its schedule for this appeal proceeding following the Court's ruling on the motion to dismiss and determine an appropriate and timely course of action.

Id. On January 21, 2009, Mallinckrodt filed an opposition to Defendants' motion to dismiss, Pls.' Opp'n, and the Defendants replied on February 2, 2009. Defs.' Reply in Support of Their Mot. to Dismiss (Docket # 34) (Defs.' Reply). The Court heard oral argument on May 4, 2009.

D. The State Administrative Process

Under the Maine Uncontrolled Hazardous Substances Sites Act, upon a finding that a location where hazardous substances were handled "may create a danger to the public health, to the safety of any person or to the environment," the Commissioner of the MDEP may designate the location as an uncontrolled hazardous substance site, order "any responsible party dealing with the hazardous substances to cease immediately or to prevent that activity and to take an action necessary to terminate or mitigate the danger or likelihood of danger," and order "any person contributing to the danger or likelihood of danger to cease or prevent that contribution." 38 M.R.S.A. § 1365(1).

The recipient of an order under 38 M.R.S.A. § 1365(1) "shall comply immediately," but may also "apply to the board for a...