Public comment opens on proposed Mallinckrodt settlement over Penobscot River poisoning
Courtesy / Justin Lewis, Getty Images, Natural Resources Defense Council
Mercury contamination of the Penobscot River estuary has been the subject of two decades of litigation.
After two decades of litigation, a proposed consent decree could accelerate the recovery of Maine’s largest river from mercury contamination.
In March, Mallinckrodt US LLC, the Maine People’s Alliance and the Natural Resources Defense Council lodged a proposed settlement with the U.S. District Court for the District of Maine.
The court must review and approve the settlement before it can go into effect.
Now the judge has set dates for the court to review the proposed settlement: Oct. 1, Oct. 4 and Oct. 5 at the Margaret Chase Smith Courthouse, Courtroom 2, at 202 Harlow St., Bangor, starting at 8:30 a.m. each day.
Members of the public may submit written comments about the settlement, or register to share their thoughts in-person on the final day of the hearing, no later than Sept. 21.
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Half-century problem
The proposed settlement aims to clean up mercury in the Penobscot River estuary, which extends from the head of tide in the vicinity of Bangor to the northern end of Penobscot Bay in the vicinity of Fort Point and Cape Jellison.
Beginning in 1967, a former chlor-alkali facility in Orrington released mercury into the estuary.
The facility manufactured chlorine, sodium hydroxide (caustic soda), sodium hypochlorite (chlorine bleach), hydrochloric acid and chloropicrin (a pesticide).
The facility was owned and operated by Mallinckrodt’s corporate predecessor until 1982, then by Hanlin Group Inc., and later by HoltraChem Manufacturing Co.
In 2000, the Maine People’s Alliance and the Natural Resources Defense Council sued Mallinckrodt and HoltraChem under the Resource Conservation and Recovery Act, asking the court for an independent study to evaluate harms from the mercury contamination and then measures to clean up the river.
The court found that Mallinckrodt was liable as a source of the mercury and that the mercury could endanger health and the environment.
A court-appointed panel of scientists studied the mercury contamination in the estuary, finding elevated concentrations of mercury in sediment and wildlife and recommending remedial action to clean up the river.
After a trial in 2014 to evaluate the study’s findings, the court appointed an engineering firm to identify cost-effective remedial actions that would accelerate the recovery of the river.
In 2014, the Maine Department of Marine Resources closed lobster and crab fisheries north of Fort Point because of mercury concentrations in lobster and then expanded the closed area in 2016.
To date, Mallinckrodt has paid over $30 million to fund court-ordered studies of the river. The studies informed the design of the remediation.
Overall plan
Under the proposed consent decree, Mallinckrodt will fund two trusts to implement remediation work in the river and beneficial environmental projects.
Mallinckrodt will deposit $187 million into the trusts over the next seven years and, if certain contingencies occur related to remediation and disposal costs, will pay up to an additional $80 million to the trusts.
The three parties selected an independent trustee, Greenfield Environmental Trust Group in Watertown, Mass., to manage the trusts and direct the remediation work.
The parties anticipate that remediation will reduce mercury concentrations across the estuary. But because the Penobscot River is a complex ecosystem, exact benefits of any particular remedial measure may be difficult to predict and measure with certainty.
The parties negotiated the settlement to avoid further litigation and delays and begin cooperative remediation as soon as possible.
Specific actions
The trusts will implement five categories of remedial actions:
• $50 million for capping approximately 130 acres of intertidal sediments along the east bank of the Penobscot River in the vicinity of Orrington. Capping involves the placement of clean materials over contaminated sediment to create a barrier between contamination and the water column.
• At least $70 million for targeted removal of contaminated sediments and wood waste that have been trapped in the estuary by tides and currents. The specific locations and amount of removal will be determined by the trustee. Materials removed from the estuary will be beneficially reused if possible or safely disposed of, outside of the aquatic environment.
• $30 million for remediation in the region that includes the Orland River and the channel east of Verona Island.
• $20 million for projects that will benefit the environment and the communities affected by the contamination. The specific projects will be determined at a later date.
• At least $10 million for 30 to 45 years of monitoring of mercury concentrations in sediment, water and wildlife.
The court will retain jurisdiction over the decree. Remediation will have to comply with local, state and federal permitting and other regulatory requirements.
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