An environmental dispute that has gone on for years about cleaning up one of the most contaminated sites in Maine’s history, the former HoltraChem Manufacturing Co. plant on the Penobscot River in Orrington, is coming to a head before the state’s highest court.
The Maine Supreme Judicial Court will hear oral arguments Tuesday morning on an appeal by Mallinckrodt LLC, a St. Louis-based pharmaceutical company that inherited responsibility for the contaminated site after HoltraChem went bankrupt and dissolved in 2001. Mallinckrodt is seeking to overturn an order that it must complete an extensive environmental cleanup that could cost about $250 million, according to some estimates.
The chemical plant first opened in 1967, using mercury in a process to create chemicals and dumping the waste directly into the Penobscot River, which drains the second-largest watershed in New England and empties into Penobscot Bay.
The plant later deposited the wastes in five landfills on its 235-acre campus before it closed in 1982.
Mallinckrodt contends in its appeal that the Maine Board of Environmental Protection overstepped its legal bounds in ordering the company to complete an extensive “dig-and-haul” operation to remove soil contaminated with mercury and chemical waste from all five landfills instead of allowing plans that would involve on-site containment, consolidation or a combination of soil removal and containment remedies, according to written arguments submitted by one of Mallinckrodt’s attorneys, Jeffrey Talbert.
“The question before the Court is not whether the former HoltraChem site needs to be cleaned up, or whether Mallinckrodt will clean it up,” said Talbert, of the Portland law firm Preti, Flaherty, Beliveau and Pachios. “Mallinckrodt has spent $40 million working toward a cleanup of the site, and has proposed spending $100 million more. The Board, however, has ordered an even more expansive remedy.”
Assistant Attorney General Peter LaFond, who represents the Maine Department of Environmental Protection in the case, argued that Mallinckrodt’s contentions are unfounded and that a Superior Court ruling in 2010 upheld the Board of Environmental Protection’s final order that the company complete the more extensive cleanup.
“The Mallinckrodt Site is one of the worst ongoing environmental disasters in the history of the state of Maine,” LaFond said in his written arguments to the court. “While Mallinckrodt had voluntarily performed some limited remediation at the Site over the years, it had refused to complete the remediation, except on its own inadequate terms.”
While the 235-acre site, with 77 contaminated acres, technically belongs to the town of Orrington, Mallinckrodt, which sold the plant in 1982, remains responsible. With the plant’s last owners, HoltraChem, no longer in business, Mallinckrodt is the only operator of the plant left to pick up the cleanup costs.
Most of the buildings and 1 million pounds of contaminated soil have been removed, and a treatment system has been installed to extract mercury from the groundwater.
The Maine People’s Alliance and the Natural Resources Defense Council have had a case against Mallinckrodt pending in U.S. District Court in Portland since 2000. A judge after a trial ordered Mallinckrodt to fund a two-part, $4 million independent study to determine the feasibility of cleaning up mercury contamination downriver from Orrington. That study is still underway, with a judge periodically ordering the company to add more money to the Penobscot River Study Panel Fund.
The Maine People’s Alliance is also part of the case coming before the Maine Supreme Judicial Court, arguing that Mallinckrodt must be held accountable for the contamination for a long-term period of time or the people of Orrington will be left with a hazardous waste site.
“Mallinckrodt was euphemistically known as a sin-eater,” the group’s attorneys, Eric and Cynthia Mehnert, said in their legal brief on the appeal. “Once Mallinckrodt’s parent, U.S. Surgical, determines Mallinckrodt is no longer a useful place to park its liability, either on a legal or accounting basis, Mallinckrodt will disappear. With it will disappear all monitoring for this Site.”
Scott Dolan can be contacted at 791-6304 or at: