A trial in federal court in Bangor beginning Tuesday will decide whether a chemical company responsible for dumping mercury from a now-closed plant in Orrington will be required to clean up the contamination that still remains decades later along the banks of the Penobscot River and the mouth of Penobscot Bay.
The trial, expected to last four weeks in U.S. District Court, comes less than a month after state officials formalized an order banning lobster and crab harvesting in the area for at least the next two years, and two months after the state’s high court ruled that the company, Mallinckrodt US, had to carry out an estimated $130 million cleanup on the site of the former HoltraChem Manufacturing Co.
While the state case focused on the contaminated land where the plant once stood, the federal lawsuit – which was first brought against Mallinckrodt in 2000 by a citizens group, Maine People’s Alliance, and the environmental action group Natural Resources Defense Council – focuses on cleaning up the contamination along the river and at the mouth of the bay.
Though the HoltraChem plant has been closed since 2000, a scientific study ordered by the federal court found last year that enough mercury contamination remains in the soil along the banks of the river and in fish and plants north of Fort Point in the bay that the state ordered the two-year ban on lobster and crab harvesting.
The contamination spread far enough into the estuaries along the river that scientists working for the federal court sought special permission to notify state officials in 2011 about dangerously high mercury levels found in black ducks, according to court records. The state responded by issuing a consumer warning and posting signs in Mendall Marsh telling women and children to avoid eating waterfowl from the area altogether and for all others to limit how much they eat.
The Natural Resources Defense Council said in a pre-trial brief submitted in federal court last week that scientific studies show that although the plant dumped the vast majority of the mercury when it first opened in 1967 and into the 1970s, it could still take another 60 or more years for the contamination to dissipate, without intervention.
“Prior to the closure, unsuspecting commercial fishermen caught lobsters and crabs from the Upper Estuary and sold them to unwitting consumers every day of the fishing season. Some, like Kenneth Wyman, a 26-year veteran of Maine’s lobster trade, fed their families – including pregnant women and young children – regular meals of tainted shellfish,” the Natural Resources Defense Council’s lead attorney, Mitchell Bernard, argued in the 28-page pre-trial brief.
The council is asking the judge to rule that the level of contamination is too harmful to remain untreated and to order Mallinckrodt to pay for ongoing mercury studies, testing and future remediation that could include dredging, capping or introducing oxygen or nutrients to prevent harmful effects of mercury.
Tuesday’s trial is the second in the federal case. A different judge, who is now retired, found in the first trial in 2002 that Mallinckrodt is liable for the mercury contamination and ordered a study panel of scientists to be formed to oversee an investigation from 2005 to 2013. Mallinckrodt was also ordered to pay for that investigation.
Mallinckrodt, a St. Louis-based pharmaceutical company that inherited responsibility for HoltraChem after HoltraChem went bankrupt and dissolved in 2001, contends that it will show at trial that the Penobscot River system is less contaminated and is recovering faster than the team of scientists suggested in their final 2013 report. The company also argued in its pre-trial court filing that some remediation options could cause “more harm than good.”
“Mercury in the river is not posing an unacceptable risk to human health, nor is it causing significantly adverse effects on populations of organisms. In the absence of any actual harm, elaborate further studies and pilot tests on speculative remedies are unnecessary,” Mallinckrodt’s attorney, Jeffrey Talbert, wrote in his 27-page pre-trial brief.
Mallinckrodt is a subsidiary of global health care products company Covidien, which also said it believes smaller-scale remediation efforts may be more appropriate.
“It is premature to speculate on the outcome of the trial,” Covidien’s spokeswoman, Lisa Clemence, said in an email Friday. “The court will hear the evidence and make a ruling based on that evidence and the law governing this matter. Mallinckrodt does not believe large scale remediation is necessary; however, the company has developed a proposal for certain limited studies and a proposal for monitoring some wildlife species, including but not limited to, certain fish and birds.”
The Maine People’s Alliance, which has allowed the Natural Resources Defense Council to take the lead role in litigating the case against Mallinckrodt, said on Friday that it plans to hold a rally on the steps of the federal courthouse in Bangor at 8 a.m. before the trial starts on Tuesday.
The MPA’s executive director, Jesse Graham, said it “wants Mallinckrodt to make it right.”
“We want the mercury contamination removed, we want our river restored and we want to once again feel safe fishing for and eating the lobster and other seafood in that region,” Graham said. “And that means we need the corporation that has been found responsible for the pollution to be held accountable for cleaning it up. This shouldn’t be the taxpayers’ burden.”
Bernard, the Natural Resources Defense Council’s lead attorney, declined to comment on the case beyond what he said in his pre-trial legal filings. But Nancy Marks, another member of the litigation team, issued a statement on the group’s behalf.
“This case is about two things. On the most immediate level, it’s about securing an effective and environmentally sound cleanup for this iconic River, which is saturated with toxic mercury. The cleanup is for the people who look to the River for healthy food, for their livelihood, for recreation, and for spiritual sustenance. The cleanup is also for the imperiled birds, fish, and wildlife that populate the River’s shores and waters,” Marks said in the written statement. “On another level, this case is about corporate responsibility. Mallinckrodt made a profit while poisoning the Penobscot with mercury, endangering public health and the environment. For over forty years, the burdens of that contamination have been borne by Maine communities. Both federal law and principles of fairness demand that Mallinckrodt shoulder the burden now for cleaning up its pollution.”
Between 25 and 30 witnesses are expected to be called to testify during the trial, and much of the evidence will likely focus on the eight-year investigation overseen by the panel of scientists.
Scott Dolan can be contacted at 791-6304 or at: