Penobscot Trusts
- 2022 to present -
In 2022, Greenfield was appointed trustee of two independent environmental response trusts created to accelerate recovery of Maine’s largest river. The appointment by the U.S. District Court for the District of Maine came as part of the Court’s approval of a multimillion-dollar settlement for cleanup of mercury contamination in the Penobscot River Estuary.
In October 2022, the U.S. District Court for the District of Maine approved a Consent Decree requiring Mallinckrodt US LLC (Mallinckrodt) to pay a minimum of $187 million—and possibly an additional $80 million—to remediate mercury contamination in the Penobscot River Estuary and provide meaningful and lasting benefit for the surrounding communities and environment.
The Court’s decision resolved a 22-year-old lawsuit filed by Maine People’s Alliance and the Natural Resources Defense Council against Mallinckrodt and others for discharging mercury into the River.
Consent Decree
The Consent Decree outlines a plan for cleanup of mercury contamination to accelerate recovery of the Penobscot River Estuary.
Under the Consent Decree, Mallinckrodt will provide $187 million for remediation measures, beneficial environmental projects, and long-term monitoring of conditions in the Estuary. Mallinckrodt may also have to pay an additional $80 million in contingent funds if changes to the remedies are needed to achieve the goal of reducing the environmental and human health effects of mercury in the Estuary.
To accelerate the natural recovery of the Estuary, the Consent Decree describes several remedial measures, including the removal (dredging) of contaminated sediments and the capping of contaminated sediments on intertidal flats. Intertidal flats are shoreline areas that are covered by water during high tide and exposed during low tide.
The Consent Decree also includes funds for long-term monitoring of fish, birds, surface water, sediment, and organisms that live in sediment to measure recovery of the River.
These remedies were selected based on the results of multiple previous studies, including the recommendations of the third-party engineering firm appointed by the U.S. District Court to identify remedial actions to accelerate recovery of the Estuary.
The remediation focuses on key areas of the Estuary where studies show remedies are expected to speed up the Estuary’s natural recovery. These areas include Orrington Reach, mobile sediments, areas of surface deposits, and Orland River and the East Channel.
Under the Consent Decree, Mallinckrodt must provide $20 million for beneficial environmental projects intended to benefit the public and environment and help offset the damage caused by mercury contamination to the Estuary and its surrounding communities.
Under the Court-approved settlement, two trusts were created to carry out the cleanup work and implement the beneficial environmental projects program.
The Remediation Trust
The Penobscot Estuary Mercury Remediation Trust (Remediation Trust) is responsible for cleanup of mercury contamination in Estuary sediments. The Remediation Trust is developing work plans for investigations and remedial design and will secure permits needed to carry out the cleanup.
In performing its work, the Remediation Trust will share information with the community and seek its input when specific cleanup plans are further defined.
The Beneficial Environmental Projects Trust
The Penobscot Estuary Beneficial Environmental Projects Trust (Project Trust) is responsible for selecting, funding, and overseeing projects designed to provide tangible environmental and public benefits to help offset damage caused by mercury contamination to the Penobscot communities and ecosystem.
The Project Trust expects to develop and launch a process in 2023 for reviewing, selecting, and funding beneficial environmental projects.
The Trustee
Maine People’s Alliance, the Natural Resources Defense Council, and Mallinckrodt selected – and the Court appointed – Greenfield Environmental Trust Group, Inc. (Greenfield), to serve as the independent Trustee for the Remediation Trust and the Project Trust.
Greenfield has more than 30 years of experience serving as the court-approved trustee of various environmental response trusts responsible for complex contaminated cleanups nationwide. Greenfield’s work has been recognized with international, national, regional, and state awards from governmental agencies and professional associations.
Background
During its early period of operations in the late 1960s and early 1970s, the former HoltraChem chemical plant in Orrington released mercury-contaminated wastewater into the Penobscot River Estuary. The facility was operated at the time by Mallinckrodt US LLC’s corporate predecessor and was later acquired and operated by other companies, including HoltraChem Manufacturing Company.
In 2000, Maine People’s Alliance and the Natural Resources Defense Council filed suit against Mallinckrodt US LLC under the Resource Conservation and Recovery Act, asking the U.S. District Court for the District of Maine to order an independent study to evaluate the harm caused by mercury contamination and then order appropriate remedial measures to clean up the Estuary.
In 2002, Mallinckrodt US LLC was found liable, and the Court concluded that the mercury may endanger health and the environment. That decision was upheld on appeal in 2006.
The Court appointed a Penobscot River Mercury Study Panel to investigate the condition of the Estuary and the need for remediation. Over the course of nine years, the Study Panel produced Phase I and Phase II studies. The study results were the subject of a trial in 2014 and a Court decision in 2015. The Court ordered a Phase III engineering study to identify cost-effective remedial actions that would accelerate the recovery of the Estuary. The study and its recommendations were filed with the Court in 2018.
The parties agreed to a settlement that was generally modeled on the Phase III study’s recommendations. The settlement is set forth in a Consent Decree that was submitted to the Court for approval in March 2021. The Court held a Fairness Hearing in October 2021 to seek public input about whether the proposed Consent Decree was fair and in the public interest. In October 2022, the Court approved the Consent Decree and its overall plan for cleanup of mercury pollution in the Estuary.
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