The legal battle over mercury pollution from the HoltraChem plant will head back to federal court this week when the former owner of the Orrington factory appeals a court-mandated environmental study of the Penobscot River.
The 1st Circuit Court of Appeals in Boston is expected to hear arguments Thursday on Mallinckrodt Inc.’s objections to an extensive, independent study of mercury contamination downstream from the plant.
In April 2000, the Maine People’s Alliance and the Natural Resources Defense Council filed suit alleging that state and federal agencies were not doing enough to address downstream mercury pollution.
HoltraChem Manufacturing Co. produced chlorine and other chemicals at the plant from the mid-1960s to 2000, resulting in tons of mercury ending up in the soils and unknown amounts in the water. Although naturally occurring, mercury can cause severe neurological and heart problems in humans and wildlife.
A federal judge agreed with the lawsuit in July 2002 and ordered Mallinckrodt – the only former owner of HoltraChem still in existence – to pay for the multiyear study, which will examine mercury contamination in aquatic organisms from above the plant site to the Penobscot Bay.
Mallinckrodt is in the middle of a multiphase effort to clean up mercury at the former plant. But the company has fought the river and bay study plan at every stage, appealing the 2002 ruling and contesting everything from the panel’s leadership to its cost estimations.
Attorneys from St. Louis-based Mallinckrodt as well as the plaintiffs will each have 15 minutes to present their sides to a three-judge panel on the Court of Appeals.
Mallinckrodt representatives and the company’s attorneys declined to comment on the ongoing litigation. However in legal briefings, the company’s attorneys objected to various details of the court-approved study plan, including the lengthy study time-frame.
“A risk that is subtle enough that it cannot be confirmed without a four-year, multi-million dollar study does not fit within the meaning of ‘imminent and substantial'” under environmental laws, the company’s legal team wrote in an August 2005 filing.
In the most recent briefings, Mallinckrodt took issue with the appointment of a research scientist, Drew Bodaly, to lead the study panel rather than a consulting firm. The company suggested that consulting firms have more ready access to a wide range of expertise.
“Scientific consulting firms are accustomed to implementing studies that are designed to answer particular scientific questions with an emphasis on the effectiveness and feasibility of engineered solutions. In contrast, research studies are often longer, less focused and more open-ended. While they may advance science, they do not always identify feasible options for solutions,” reads a January 2006 briefing.
Attorneys for the Maine People’s Alliance and the Natural Resources Defense Council have defended Bodaly’s selection in briefings, calling the study panel “sound, thoughtful, and thoroughly responsive to the court’s prior orders.”
Mitchell Bernard, legal counsel for New York-based NRDC and the plaintiff’s lead attorney, said the HoltraChem case is “very significant” nationally because of the mercury levels believed to have emanated from the plant.
“The Penobscot River and Bay are important resources both in terms of ecological quality and the effects that contaminants can have on human health,” Bernard said in an interview. “Mercury is one of the most pernicious pollutants we know, and there was a tremendous amount of mercury deposited in the river from the plant.
“And mercury does not go away,” he said.
Adam Goode, environmental organizer for the Maine People’s Alliance, said he was pleased that cleanup is progressing at the plant. In August alone, crews removed another 1,800 pounds of mercury that had been stored at the site in addition to more than 1,400 pounds removed earlier this spring and summer.
Mallinckrodt and the Maine Department of Environmental Protection are still at odds over what to do with hundreds of thousands of tons of soil contaminated with mercury on site. DEP wants the soil removed and treated, while the company hopes to encapsulate it.
A recent environmental study by a division of the federal Department of Health and Human Services appears to strike a blow to Mallinckrodt’s claim that removing the contaminated soil could expose local residents to harmful mercury emissions.
As for the appeal, Goode said he met with Bodaly and his crew and is confident in their abilities and strategy. “We’re pretty confident the case will move forward,” he said.