A lawyer for the company responsible for the cleanup of one of the most environmentally contaminated sites in Maine’s history, the former HoltraChem Manufacturing Co. plant on the Penobscot River, argued Tuesday that the state has incorrectly treated the contamination as a legal “emergency” though it has existed for decades.
Jeffrey Talbert, attorney for the St. Louis-based company Mallinckrodt LLC, made that argument before the Maine Supreme Judicial Court in Portland as part of the company’s appeal 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. The river drains the second-largest watershed in New England and empties into Penobscot Bay.
The plant later deposited the waste in five landfills on its 235-acre campus. Talbert said the landfills have been secured since the plant ceased operations in 2000.
Before 2005, the Maine Department of Environmental Protection favored a less extensive cleanup proposal to contain some of the contamination on the Orrington site. Then-Gov. John Baldacci intervened, seeking a more extensive “dig-and-haul” solution, and the DEP followed in 2008 with a final order to remove contaminated soil from all five landfills with no on-site containment.
Talbert argued that the DEP inappropriately used a portion of state law meant for emergencies, likening it to a cease-and-desist order, though the emergency had passed.
“There was certainly no activity that was meant to be stopped,” Talbert said.
“You’re not saying that continuously leaking mercury is not posing a danger to the river or the people who live along it?” asked Justice Ellen Gorman, one of a panel of seven judges hearing the case.
Talbert clarified that there was no action to “cease and desist” from and that the site is currently stabilized.
“The question is really the long-term remedy – what happens to these landfills in the long term,” he said.
Assistant Attorney General Peter LaFond, who represents the DEP in the case, argued that Talbert was misinterpreting the law.
“The plain language of the statute argues against Mallinckrodt’s argument,” LaFond said.
Mallinckrodt is contending in its appeal that the DEP could have allowed on-site containment, consolidation or a combination of soil removal and containment remedies.
Talbert, under questioning from Chief Justice Leigh Saufley, denied that Mallinckrodt is seeking what Saufley called “a complete do-over.”
“We’re not suggesting that the entire case has to be done. It could be truncated to just the issues that remain in dispute between the entities,” Talbert said.
The Maine People’s Alliance, a citizens group that helped sway the governor to intervene in the case in 2005, also entered arguments in the appeal.
A lawyer for the group, Eric Mehnert, said at Tuesday’s hearing that he felt the group was justified in its actions, spurring Baldacci’s actions and compelling the Board of Environmental Protection to hold hearings before the final 2008 order.
“So you say it makes no difference in the long run that People’s Alliance may have influenced the process because the board got a new shot at it?” Justice Andrew Mead asked him.
What it comes down to, Mehnert said, is that “we want our citizens to step forward and influence the process where there are pollutants put into our rivers, poisoning our wells and saying, ‘We want you to clean them up.’ ”
The court made no immediate ruling on the appeal and gave no timetable when it would issue a final opinion.
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