Me. People's All. v. Holtrachem Mfg. Co.
| Decision Date | 04 August 2022 |
| Docket Number | 1:00-cv-00069-JAW |
| Parties | MAINE PEOPLE'S ALLIANCE and NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs, v. HOLTRACHEM MANUFACTURING COMPANY, LLC, and MALLINCKRODT U.S. LLC, Defendants. |
| Court | U.S. District Court — District of Maine |
ORDER ON CONSENT DECREE AND PROPOSED BAR ORDER
For over fifty years, mercury contamination from a former chlor-alkali plant has polluted Maine's Penobscot River. Twenty years ago, environmental groups invoked the Resource Conservation and Recovery Act's (RCRA) citizen suit provision in an effort to force the responsible party to fund widespread remediation. This Court held two bench trials to decide liability and endangerment issues, and ordered three phases of rigorous, independent scientific and engineering studies to evaluate the severity of the problem and assess potential remediation strategies. The Court then ordered an engineering firm to develop appropriate and effective remedies to mitigate the harm to the people, biota, and environment of the Penobscot estuary. After extensive negotiations, the parties used the engineering firm's report to inform a settlement that would avert a third contentious trial and instead would commence one of the largest environmental cleanups in Maine history. The Court conditionally approves the parties' proposed Consent Decree, which commits at least $187 million-and up to $267 million-to an independent remediation trustee, as fair, adequate, and reasonable, and as consistent with congressional objectives. The Court denies the defendant's request for a bar order barring future claims upon entry of the Consent Decree.
From December 9, 1967, through April 30, 1982, Mallinckrodt U.S. LLC[2](Mallinckrodt) or one of its affiliates owned and operated a chlor-alkali plant on a 240-acre site in Orrington, Maine. Between 1982 and 1994, the plant was owned and operated by Hanlin Group, Inc. (d/b/a LCP Chemicals and Plastics, Inc.) (Hanlin), which bought the site from Mallinckrodt's predecessor.[3] Hanlin and its related companies filed a Chapter 11 bankruptcy petition in 1991. HoltraChem Manufacturing Company, LLC (HoltraChem) owned and operated the plant from 1994 until it closed the plant in September 2000.
While Mallinckrodt owned and operated the plant, facility production included the use of approximately eighty-two tons of mercury on site at any given time. The plant sent mercury-contaminated brine sludge into its sewer, and then through the facility's outfall directly into the Penobscot River; this occurred every day, repeatedly, from December 9, 1967, through June 1970. Although the plant estimated that 1.5 to 2.5 pounds of mercury were discharged per day through the facility's outfall during this period, this estimate did not include mercury discharged through air emissions or groundwater. In fact, Mallinckrodt admitted that more mercury was discharged through air emissions than through the facility outfall. In addition, the state of Maine was unaware that the facility was discharging mercury into the Penobscot River during this period. Although the volume of discharges declined between 1970 and 1982, Mallinckrodt continued to discharge mercury through 1982.
In response to a federal suit filed against it by the United States in 1970, Mallinckrodt constructed Hickel's Pond to divert process waste. The pond was located close to the Penobscot River on a downward slope from the plant buildings. The operation manager of the plant indicated in a 1972 letter that the facility took periodic river, fish, and sediment samples and kept the results on file, but to his knowledge in 2002, the facility did not conduct any further sampling.
In 1994, upon buying the plant, HoltraChem assumed (1) Hanlin's obligations under a 1993 consent decree with the Environmental Protection Agency (EPA) that required Hanlin to conduct a site investigation and corrective measures study under the corrective action provisions of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a); and (2) Hanlin's obligations under a 1991 settlement agreement between it and Mallinckrodt regarding expenses for completion of the study. Under the 1993 Consent Decree, a three-phase process was instituted: (1) site investigation; (2) a study of possible corrective measures; and (3) remediation.
This case has a lengthy procedural history. On April 10, 2000, the Plaintiffs filed suit against HoltraChem and Mallinckrodt, alleging violation of RCRA, 42 U.S.C. § 6972(a)(1)(B). Compl. (ECF No. 1). The Complaint alleged that Mallinckrodt caused an “imminent and substantial endangerment to health and the environment” as a result of discharging mercury into the Penobscot River. Id. ¶ 1. The Plaintiffs sought injunctive relief, requesting 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.” Me. People's All. v. HoltraChem Mfg. Co., 211 F.Supp.2d 237, 241 (D. Me. 2002).
Following a nine-day bench trial that concluded on March 14, 2002, Tr. (ECF No. 134), in which the “evidence focused on the status of the Penobscot River south of the plant and the upper Penobscot Bay [a/k/a Penobscot downriver],” HoltraChem, 211 F.Supp.2d at 240-41, Judge Gene Carter[4] found Mallinckrodt liable under RCRA on July 29, 2002, id. at 251 (). Mallinckrodt filed a notice of appeal on August 26, 2002. Def. Mallinckrodt Inc.'s Notice of Appeal (ECF No. 149).
While Mallinckrodt's appeal was pending, Judge Carter ordered Mallinckrodt to fund a two-phase study of mercury in the Penobscot River on November 25, 2003. Implementing Order for Penobscot River Study Pursuant to Mem. of Decision and Order Dated July 29, 2002 ¶¶ 5-8 (ECF No. 159) (Implementing Order).[5] The study was to be executed by a study panel, the purpose of which was to resolve the following issues:
Id. ¶ 1 (emphasis in original). In resolving these three issues, Judge Carter ordered the Study Panel to answer six questions:
Id. While the Study Panel completed its judicially assigned tasks, the Court retained jurisdiction of the case. Id. ¶ 13.
The purpose of the Phase I Study was to “assess (i) whether mercury within the study site presently poses an unacceptable risk to human health and/or the environment; and (ii) answer the specific questions (A) through (E)” set forth above. Id. ¶ 5. Following completion of this part of the study, the Court would evaluate the findings and recommendations of the Phase I Study and “determine the purposes and scope of the work to be required by the Phase 2 Study Plan.” Id. ¶ 8.
The Court, with input from the parties, appointed a three-member Study Panel, and met with members of the Panel on April 20, 2004. Order of Notice (ECF No. 170); Min. Entry (ECF No. 173). On July 22, 2005, the Study Panel submitted its proposed Phase I Study Plan to the Court. Order of Notice, Attach. 1, A Study Plan for Evaluation of the Mercury Contamination of the Penobscot River/Estuary, Maine (ECF No. 259) (Phase I Study Plan). On August 10, 2005, after reviewing the parties' comments and objections, the Court approved the Phase I Study Plan. Order Approving Study Plan (ECF No. 266).
On December 22, 2006, the First Circuit fully affirmed Judge Carter's 2002 order. Me. People's All. v. Mallinckrodt, Inc., 471 F.3d 277, 298 (1st Cir. 2006) (“[W]e uphold the district court's rulings in all respects”).
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