FREQUENTLY ASKED QUESTIONS REGARDING PROPOSED SETTLEMENT
Why are the Parties settling?
After lengthy litigation and Court-ordered studies, the Parties believe this proposed settlement is fair, reasonable, and in the best interests of the Penobscot River and the State of Maine. The Parties have agreed to a remediation plan that includes a combination of scientifically targeted remediation and cleanup in the River, as well as beneficial environmental projects. The plan includes many of the recommendations of the independent panel of scientists and engineers appointed by the Court. We anticipate the remediation work will accelerate the recovery of the River from decades of mercury contamination. If approved, this settlement will allow remediation to begin as soon as possible and avoid additional costs, uncertainties, and delays from further litigation.
What are the benefits of the settlement?
The settlement allows us to move forward with an actionable plan for the clean-up of the River that is designed to improve the environment and minimize risks. This proposed settlement provides $187 million in committed funds for remediation and beneficial environmental projects and, if necessary, an additional $80 million dollars for specific contingencies.
Why wasn’t the public consulted about the proposed settlement terms?
The public will have an opportunity to review the proposed settlement and provide comments before the Court decides whether to approve it. Because this litigation was brought as a citizen suit, without any government involvement, the settlement first had to be negotiated among the parties to the lawsuit. Maine People’s Alliance, Natural Resources Defense Council, and Mallinckrodt LLC agreed to this settlement because we believe the proposed settlement will benefit the natural environment and everyone who uses, relies on, and enjoys the Penobscot River.
Who will carry out the work?
If the agreement is approved by the Court, Greenfield Environmental Trust Group will act as an independent Trustee. Greenfield Environmental Trust Group has more than 30 years of experience managing complex environmental remediation trusts and cleanups. The Trustee will operate independently, manage the trust funds, and direct the remediation using the highest professional engineering and scientific standards. Additional information about Greenfield Environmental Trust Group is available at https://greenfieldenvironmental.com.
Will this remedy remove mercury in the River?
The agreement would provide at least $70 million for targeted removal of contaminated sediments in the Penobscot River. In addition to removal, the agreement also provides funding for capping of intertidal areas. Capping will place clean material over contaminated sediment to create a barrier between the existing mercury and the water column, thus isolating the mercury and preventing its entry into biota or migration downstream.
The proposed settlement focuses on targeted capping and removal of mercury in locations that are thought to be contributing the most to ongoing problems in the River. Removing all of the mercury from the River is not a feasible option.
Why were the specific remedies chosen?
The settlement focuses on targeted areas where remedies have the greatest potential to improve conditions in the River and be cost-effective, while also minimizing potential risks and disruptions. The remedies in the proposed settlement are informed by the findings and recommendations of the independent scientists and engineering firm appointed by the Court. Using those recommendations as a basis, the Parties agreed on remedies that are reasonably calculated to accelerate recovery of the River.
Where will the dredging take place?
The proposed settlement includes targeted removal of contaminated sediment to remove mercury from the Estuary in locations where it will provide the most remediation benefit, while minimizing potential risks. Specific dredging locations have not yet been selected, and the Trustee will determine where dredging will be feasible and provide the most remediation benefit to the River. The Trustee will hire qualified personnel and ensure appropriate safety and mitigation controls are in place to minimize disruption. Moreover, all remediation work, including dredging, will be subject to local, state, and federal permitting requirements, and will provide opportunities for public participation and comment, as required by statutes and regulations.
Where will the material be disposed? Will any dredged materials be dumped in Penobscot Bay?
Our goal is to beneficially reuse as much dredged material as possible. This means that the material would be recycled and reused in upland infrastructure and construction projects. Any material that does not qualify for beneficial reuse will be safely transported to appropriate landfills, which are designed to protect the environment from contaminants. Dredged materials will not be deposited in Penobscot Bay.
Why can’t you do additional capping instead of the proposed dredging?
The proposed dredging would take place in locations where deposits of contaminated sediment and wood waste have accumulated, with a focus on sediment and wood waste that may be naturally mobilized and transported around the Estuary by tides and currents. Although the specific locations have not yet been selected, these sediment deposits tend to form in locations where the water currents, sediment density, and water depths may render implementation of capping difficult or impossible in these areas. All remediation work, including removal of sediments, will be subject to local, state, and federal permitting requirements, and will provide opportunities for public participation and comment, as required by statutes and regulations.
How will dredging affect property owners and towns that border the River or use the River?
The goal of this settlement is to improve the condition of the Penobscot River for everyone’s benefit. Targeted removal of contaminated sediment will be limited to areas where it will provide the most remediation benefit. If dredging or other work will require access to private property, the Trustee will work with property owners to explain the proposed work, obtain access agreements, and minimize disturbance.
Where will the capping take place?
The proposed settlement provides funding for capping 130 acres of intertidal sediments in the Orrington Reach, primarily on the east bank of the River near Orrington.
How does this relate to the cleanup of the HoltraChem Site?
The proposed settlement is separate from the cleanup at the HoltraChem Site. The proposed settlement addresses mercury contamination throughout the Penobscot River Estuary and is between Mallinckrodt, MPA, and NRDC. By contrast, the HoltraChem Site cleanup was ordered by and is being overseen by the Maine Department of Environmental Protection (DEP), with a focus on the former plant site in Orrington.
Under DEP’s supervision, Mallinckrodt is conducting cleanup work at the HoltraChem site and, as part of that, previously removed some sediment from the Southern Cove, which is adjacent to the HoltraChem site. The proposed settlement will provide funding for capping areas along and south of the HoltraChem site that have elevated mercury concentrations that have not yet been remediated.
What beneficial environmental projects will take place and how will they be selected?
Specific beneficial environmental projects have not been selected yet. The Trustee and the Parties will identify potential projects that benefit the natural environment of the River, improve recreation and enjoyment of the River, and restore resources that may have been injured from exposures to mercury and other neurotoxins. These projects are intended to benefit the people of Maine and individuals may suggest a project to the Trustee or the Parties.
How many years will the remediation process last?
If the Court approves the settlement, the Trustee will begin planning and designing the remediation work as soon as possible. The exact time periods for the work are not yet known, and work is likely to occur in different parts of the Estuary at different times. The work schedule will depend in part on permitting and regulatory approvals and conditions. The categories of remediation work will be planned and sequenced to maximize remediation benefit. Additionally, the proposed settlement provides funding for long-term monitoring of the River for at least 30 years to help ensure the clean-up is effective and lasting.
What will the long-term monitoring include?
The Trustee will oversee monitoring of sediments, water, and biota (wildlife) at three-year intervals for at least 30 years, and up to 45 years. The goal of the monitoring program is to gather consistent, representative data over time that will give a good indication of the overall progress of recovery in the ecosystem.
If the monitoring shows that mercury concentrations in lobsters and/or crabs are going down, will the fishery closure be lifted?
We plan to share all the monitoring data with the relevant state agencies, including the Department of Marine Resources. The Department of Marine Resources would decide whether to modify the fishery closure. The Parties and the Court do not have any role in that state regulatory decision.
What role will towns along the River have in evaluating or approving remediation work?
The Parties anticipate that local communities will participate in the public comment and permitting processes required by local, state, and federal statutes and regulations. Some remediation activities may require land use, zoning, or shoreland zoning approvals or permits from local towns. The Parties welcome input from communities to maximize the benefits to local communities and minimize any disturbances to recreational, commercial, and other uses of the River.
What is a Bar Order and who would it affect?
In environmental cases involving the federal government, the government’s involvement typically precludes private lawsuits that would address the same issues and court orders that bar additional claims after a party has resolved its responsibility are common. In this case, since the federal government is not involved, Mallinckrodt would need an order, often referred to as a “claim bar” or “bar order” in order to have such protection.
Mallinckrodt has requested an order that would prevent additional litigation by private parties or the government regarding remedial measures in the River or seeking monetary damages from Mallinckrodt for mercury contamination in the River. Such an order would prevent potentially competing remediation measures so that there is certainty and finality regarding the remedies in the Penobscot River and the extent of Mallinckrodt’s liability. Maine People’s Alliance and NRDC support Mallinckrodt’s request to bar possible future claims against Mallinckrodt by other entities that may have contributed to the mercury contamination but do not support barring all possible future claims by other private or governmental parties.
Why is Mallinckrodt seeking a Bar Order?
Mallinckrodt seeks a bar order to create finality and ensure an end to litigation over contamination in the River. Entry of a bar order would also prevent potentially competing remediation measures so that there is certainty and finality regarding the remedies in the Penobscot River and the extent of Mallinckrodt’s liability. Maine People’s Alliance and NRDC support Mallinckrodt’s request to bar possible future claims against Mallinckrodt by other entities that may have contributed to the mercury contamination but do not support barring all possible future claims by other private or governmental parties.
Didn’t Mallinckrodt recently go into bankruptcy due to opioid settlements? How will Mallinckrodt pay for this if it is bankrupt?
Despite having similar names, the company in this case, Mallinckrodt US LLC, is completely separate from Mallinckrodt Pharmaceuticals, which is involved in bankruptcy proceedings. Mallinckrodt US LLC is not part of those bankruptcy proceedings and is not bankrupt. Mallinckrodt US LLC is a subsidiary of United States Surgical Corporation, and an affiliate of Medtronic plc, the ultimate parent company of both entities.