United States 1st Circuit Court of Appeals Reports

DEFENSE COUNCIL, Plaintiffs, Appellees, v. MALLINCKRODT,
INC., Defendant, Appellant. No. 05-2331. United States
Court of Appeals, First Circuit. December 22, 2006.

Appeal From the United States District Court For the
District of Maine [Hon. Gene Carter, Senior U.S. District

Carter G. Phillips, with whom Joseph R. Guerra, J. Andrew
Schlickman, John M. Heyde, and Sidley Austin LLP were on
brief, for appellant.

Mitchell S. Bernard, with whom Nancy S. Marks, Eric J. Uhl,
and Moon, Moss & Shapiro, P.A. were on brief, for

Before SELYA and HOWARD, Circuit Judges, and SMITH,[fn*]
District Judge.

[fn*] Of the District of Rhode Island, sitting by

SELYA, Circuit Judge.

In the teeth of two decades of contrary precedent from four
circuits, defendant-appellant Mallinckrodt, Inc. asks us to
restrict the role of private citizens in the abatement of
imminent and substantial threats to the environment and
public health. In support of this entreaty, Mallinckrodt
presents a gallimaufry of new, hitherto unconsidered
arguments. After careful consideration of this
asseverational array, we conclude that our sister circuits
have adroitly distilled the meaning of section
7002(a)(1)(B) of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. § 6972(a)(1)(B) — the
so-called citizen suit provision. Correctly interpreted,
this provision allows citizen suits when there is a
reasonable prospect that a serious, near-term threat to
human health or the environment exists.[fn1] In such
situations, the provision permits remedies consistent with
the scope of a district court’s equitable discretion.

The district court read the statute in this manner and
faithfully applied the law to the facts. Its supportable
liability finding, coupled with a choice of remedy that
comes within the is a cancer encincture of its discretion,
leads us to reject Mallinckrodt’s appeal.


We rehearse here only those facts that are directly
relevant to the issues on appeal, referring readers who
hunger for more information to the district court’s initial
opinion. See Me. People’s Alliance v. HoltraChem Mfg. Co.,
211 F. Supp. 2d 237 (D. Me. 2002). This narrative credits
the factual findings of the district court to the extent
that those findings are not clearly erroneous. See Fed.
Refinance Co. v. Klock, 352 F.3d 16, 27 (1st Cir. 2003).

From 1967 to 1982, Mallinckrodt, then called International
Minerals and Chemicals Corporation, owned and operated a
chlor-alkali plant (the Plant) situated on the banks of the
Penobscot River in Orrington, Maine. Thereafter, the Plant
continued operations under other owners, namely, Hanlin
Group, Inc. and HoltraChem Manufacturing Co.,[fn2] until it
closed in 2000. During the period of its operation, the
Plant deposited tons of mercury-laden waste into the
Penobscot River. See Me. People’s Alliance, 211 F. Supp. 2d
at 253. While there have been a number of other significant
contributors to mercury in the Penobscot, “Mallinckrodt has
been a dominant source.” Id. at 255.

In 1986, the Plant’s continuous release of mercury led the
Environmental Protection Agency (EPA) to file an
administrative RCRA action against Hanlin (the Plant’s
quondam owner). That action resulted in an agreement for
corrective measures. Deeming turnabout fair play, Hanlin
sued Mallinckrodt for contribution. In a 1991 settlement,
Mallinckrodt agreed to pay a portion of the compliance costs
imposed by the agreement.

A subsequent enforcement action led to a 1993 consent
decree that superseded the earlier agreement. Although not
a party to this consent decree, Mallinckrodt, consistent
with the Hanlin settlement, paid its share of the
compliance costs and participated in ongoing negotiations
with government regulators.[fn3] That included working with
both EPA and Maine’s Department of Environmental Protection

The 1993 consent decree contemplated a tripartite process
comprising site investigation, evaluation of possible
corrective measures, and remediation. In line with the
first phase of this process, Mallinckrodt compiled and
submitted a site investigation report. In March of 1997,
EPA and MDEP, acting in concert, issued a draft notice of
disapproval. Mallinckrodt countered with a supplemental
site investigation report but, in 2000, EPA and MDEP again
disapproved. Among other things, the regulators instructed
Mallinckrodt to study the effects of mercury downriver from
the Plant.

Within a matter of months, Mallinckrodt commissioned a
study aimed at examining downriver mercury contamination.
It conducted a second downriver study during the summer of
2001. Notwithstanding the submission of these studies,
however, the district court supportably found that
Mallinckrodt made only minimal efforts to pursue the
designated line of inquiry and that the decision to forgo
more vigorous efforts was deliberate. Id. at 244 & n. 9.

In the midst of this sparring, two environmental groups
— the National Resources Defense Council and the
Maine People’s Alliance — joined forces to commence
a citizen suit under RCRA § 7002(a)(1)(B). The
plaintiffs alleged that mercury contamination downriver from
the Plant “may present an imminent and substantial
endangerment to health or the environment.” Acknowledging
the possibility that remediation might eventually prove to
be either unnecessary or infeasible, their principal prayer
for relief was that Mallinckrodt be ordered to fund an
“independent, comprehensive, scientific study to determine
the precise nature and extent of the endangerment.”

Mallinckrodt tried on several occasions to derail the suit
on the ground that EPA, not the courts, had primary
jurisdiction. The district court demurred, holding that the
suit would not present any conflict with agency action due
to EPA’s apparent lack of interest in the lower Penobscot.

The case was reached for trial in March of 2002. By that
time, EPA and MDEP had made public, but had not adopted,
preliminary media protection standards, potentially
applicable to the lower Penobscot. Had those standards gone
into effect, no remediation would have been required for
the region with which this litigation is concerned.

During a nine-day bench trial,[fn4] one of the plaintiffs’
principal experts was Dr. Robert Livingston. The district
court found Livingston, an aquatic biologist, to be
“particularly credible and persuasive.” Id. at 251. Drawing
on three main sources — the data gathered under the
EPA-ordered site studies, some limited field work, and the
scientific literature concerning mercury in aquatic systems
— Livingston opined that there might be a serious
endangerment to both human health and the environment
resulting from mercury contamination in the lower
Penobscot. Although believing it “highly likely” that these
harms would prove to be both real and severe, he cautioned
that he had not yet “done the right research to determine
that.” Due to the absence of sufficient research, no one
could know with certitude “if there is a problem” or “what
the problem is.” When all was said and done, however, he
thought it “highly likely” that localized and targeted
remediation would be both necessary and desirable.

The plaintiffs also adduced testimony from other experts,
from individuals within their respective memberships, and
from EPA and MDEP representatives. A number of defense
experts testified as well. After both sides had rested and
submitted briefs, the district court issued a thoughtful

The court found that mercury in aquatic systems is
susceptible to being transformed by microscopic organisms
into its organic form (known as methyl mercury). Id. at
244. Methyl mercury is a highly toxic substance which, even
in low dosages, is inimical to human health; for example,
it “attacks the nervous system, the kidneys, the immune
system, and the reproductive system” and is especially
damaging to a developing fetus. Id. at 245. Methyl mercury
is especially pernicious because it is the most
bioavailable form of mercury and therefore, is readily
accumulated in humans and animals alike. Id. at 244.

Next, the court found that mercury concentration in
sediments extracted from the lower Penobscot runs five
times higher than in the Kennebec River (which
Mallinckrodt’s expert identified as an appropriate
comparator). Id. at 248. Despite this high concentration,
the court wisely recognized that “the mere presence of
mercury contaminated sediments is alone not enough to
constitute an imminent and substantial endangerment,” id.,
so it proceeded to examine the available data concerning
mercury contamination in various species in the lower
Penobscot, including benthos, killfish (minnows), lobsters,
blue mussels, cormorants, osprey, and eagles. This
examination led the court to conclude that “mercury is
methylating downriver” and that “methyl mercury is
bioavailable, entering biota, and biomagnifying throughout
the food web.” Id. at 251.

The court expressed heightened concern about a region known
as Frankfort Flats, which displayed extraordinarily high
mercury readings in both sediments and biota. Id. at 252.
Frankfort Flats receives drainage from a marsh system, and
marshes are considered to be hotbeds of methylation. See

When the district court turned to the legal standard for
citizen suits under RCRA § 7002(a)(1)(B), it
characterized that standard as “lenient.” 211 F. Supp. 2d
at 246. It cited with approval case law emphasizing that
RCRA allows such a suit when the putative polluter “may”
have caused an imminent and substantial endangerment. Id.
at 246-47 (collecting cases). On this basis, the court
concluded that the statute’s “imminent and substantial
endangerment” standard would be satisfied by a “reasonable
medical concern for public health and a reasonable
scientific concern for the environment.” Id. at 252.

Applying this interpretation of the statute to the facts as
found, the court determined that Mallinckrodt’s disposal
activities may have created an imminent and substantial
danger and that, therefore, the plaintiffs had carried
their burden of proof anent liability. Id. at 251-52. Then,
having found liability, the court directed the parties to
make a good-faith effort to agree on a study plan. Id. at
256. The parties complied and, on August 10, 2005, the
court approved a plan which, if carried out, probably will
require Mallinckrodt to spend around $4,000,000 for
laboratory analyses, independent of all other costs. The
purpose of the study is to learn whether, in actuality,
mercury contamination in the lower Penobscot adversely
affects either human health or the environment, and if so,
to devise a feasible remedial approach.

Mallinckrodt now appeals, asserting that the plaintiffs
lacked standing to sue in the first place; that the lower
court set the bar too low for RCRA citizen suits; and that,
in all events, the court abused its discretion in
fashioning relief. We address these assertions one by one.


As a threshold matter, Mallinckrodt alleges that the
plaintiffs lack standing to sue because they have not
suffered an injury in fact.[fn5] The existence vel non of
standing is a legal question and, therefore, engenders de
novo review. See N.H. Right to Life Political Action Comm.
v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996). When, however,
the trial court’s standing determination rests on findings
of fact, we must honor those factual findings unless they
are clearly erroneous. See Rivera v. Wyeth-Ayerst Labs.,
283 F.3d 315, 319 (5th Cir. 2002).

We start our inquiry into standing with the undisputed fact
that both of the plaintiffs are associations. In order to
ground a claim of associational standing (that is, standing
to bring suit on behalf of its membership), an association
must show three things: (i) that individual members would
have standing to sue in their own right; (ii) that the
interests at stake are related to the organization’s core
purposes; and (iii) that both the asserted claim and the
requested relief can be adjudicated without the
participation of individual members as named plaintiffs.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 181 (2000). The plaintiffs in this case
plainly have made the latter two showings. Hence, the
inquiry reduces to whether the organizations’ individual
members would have had standing to proceed in their own

Because there is nothing in RCRA’s text or history that
suggests a congressional intent to erect statutory standing
barriers beyond those imposed by Article III of the
Constitution and because Mallinckrodt has not identified
any prudential standing concerns, we focus on what is
essential to establish Article III standing. Those
requirements are expressed in a familiar three-part
algorithm: a would-be plaintiff must demonstrate a concrete
and particularized injury in fact, a causal connection that
permits tracing the claimed injury to the defendant’s
actions, and a likelihood that prevailing in the action will
afford some redress for the injury. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992); Pag??n v. Calder??n,
448 F.3d 16, 27 (1st Cir. 2006). These requisites must be
proved “with the manner and degree of evidence required at
the successive stages of the litigation.” Lujan, 504 U.S.
at 561. When, as now, standing is reviewed after trial, the
facts establishing standing “must be supported adequately
by the evidence adduced at trial.” Id. (internal quotation
marks omitted). The ultimate quotient of proof is a
preponderance of the evidence. See Perry v. Vill. of
Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999).

We first dispose of an argument that verges on the
specious. Mallinckrodt protests that the plaintiffs cannot
have established a cognizable injury since the district
court thought it appropriate to order a remedy — the
study — that would determine whether mercury in the
Penobscot is “having significant adverse effects” on the
environment or “posing an unacceptable risk to human
health.” This protestation conflates the district court’s
finding of liability with its choice of remedy. As we
shortly shall explain, probabilistic harms are legally
cognizable, and the district court made a supportable
finding that a sufficient probability of harm exists to
satisfy the Article III standing inquiry. See Me. People’s
Alliance, 211 F. Supp. 2d at 253. The fact that the court
chose a remedy that aspires to furnish a degree of
determinacy before fashioning further relief speaks only to
the court’s cautious use of discretion in selecting
remedies; it does not speak to the plaintiffs’ standing as
of the present time.

Having dispatched this attempted sleight of hand, we
proceed to more serious matters. Mallinckrodt concentrates
its standing attack on the plaintiffs’ ostensible failure
to prove the injury-in-fact component. At trial, the
plaintiffs called four witnesses from within their
respective memberships, all of whom reside on or near the
banks of the Penobscot River. All four vouchsafed that they
have modified their behavior due to fear of mercury
contamination. Although eager to do so, none of them will
eat fish or shellfish from the river nor recreate on or near
it. One witness added that, but for the mercury
contamination, she would harvest mussels and sell them to
supplement her income. The district court credited this
testimony. Id.

Plaintiffs in environmental suits may predicate claims of
injury on aesthetic or recreational harms. See Laidlaw, 528
U.S. at 183; Sierra Club v. Morton, 405 U.S. 727, 735
(1972); Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 55
(1st Cir. 2001). Still, neither a bald assertion of such a
harm nor a purely subjective fear that an environmental
hazard may have been created is enough to ground standing.
Rather, an individual’s decision to deny herself aesthetic
or recreational pleasures based on concern about pollution
will constitute a cognizable injury only when the concern
is premised upon a realistic threat. See Laidlaw, 528 U.S.
at 184; see also City of Los Angeles v. Lyons, 461 U.S. 95,
107 n. 8 (1983) (explaining that “the reality of the threat
. . ., not the plaintiff’s subjective apprehensions,”
constitutes the cognizable injury).

In this instance, Mallinckrodt exhorts us to find that the
witnesses’ stated fears are unreasonable. It points out
— and the record confirms — that waterways
throughout Maine suffer to some extent from mercury
pollution and that, therefore, it is responsible at most for
a probabilistic increase in a risk that the witnesses would
in any event have had to run.

There is some confusion as to the thrust of Mallinckrodt’s
argument. The plaintiffs read its brief, not implausibly,
as arguing that these facts necessarily limit cognizable
injuries to identifiable medical concerns. See Appellees’
Br. at 54. Mallinckrodt’s reply brief, however,
acknowledges that the plaintiffs’ principal claim of injury
is for diminished enjoyment of their environment and joins
issue on the sufficiency of the proof in that regard. See
Appellant’s Reply Br. at 25. At bottom, this argument
suggests that the plaintiffs must show that Mallinckrodt’s
activities created a significantly increased risk of harm
to health or the environment so as to make it objectively
reasonable for the plaintiffs’ members to deny themselves
aesthetic and recreational use of the river.

To establish an injury in fact based on a probabilistic
harm, a plaintiff must show that there is a substantial
probability that harm will occur. See Warth v. Seldin, 422
U.S. 490, 504 (1975); see also Adams v. Watson, 10 F.3d
915, 923 (1st Cir. 1993). Mallinckrodt suggests that the
instant plaintiffs have not demonstrated a sufficiently
probable increase in harm because of (i) Dr. Livingston’s
admitted uncertainty about whether any problem exists and
(ii) the notion that politically accountable branches of
government, not courts, are the appropriate entities to
make judgments as to what risks are acceptable in modern
society. Neither suggestion is convincing.

Mallinckrodt’s first suggestion relies ultimately on a
single snippet of Dr. Livingston’s testimony, wrested from
its contextual moorings. But a trial court, confronted with
a complex and highly ramified factual situation, is fully
entitled to consider the import of a witness’s testimony as
a whole. This case is a good example: Dr. Livingston
testified, in effect, that the presence of a great deal of
smoke justified looking for a fire. Mallinckrodt excerpts
only his isolated statement that he had not actually seen a
fire yet. This plucking of the record overlooks the obvious
fact that the district court, drawing on the whole of Dr.
Livingston’s testimony as well as a plethora of other
evidence, supportably concluded that “mercury is methylating
downriver, and that such methyl mercury is bioavailable,
entering biota, and biomagnifying throughout the food web”
in sufficient quantity that it may well present an imminent
and substantial danger to the environment. Me. People’s
Alliance, 211 F. Supp. 2d at 251 (citation omitted).
Relatedly, the court found that “the effects resulting from
methyl mercury exposure . . . clearly endanger reproduction,
development, and overall health of the public and the
environment,” id. at 252, and that “Mallinckrodt has been a
dominant source of mercury in the Penobscot River,” id. at

In other words — to return to our metaphor —
the lower court discerned telltale signs that a fire might
already be smoldering. In light of its warrantable
findings, the court had ample reason to conclude that
Mallinckrodt has created a substantial probability of
increased harm to the environment. That increased risk, in
turn, rendered reasonable the actions of the plaintiffs’
members in abstaining from their desired enjoyment of the

Mallinckrodt’s second suggestion is nothing less than a
no-holds-barred assault on the federal courts’ institutional
competency. It emphasizes that the plaintiffs allege no
violation of any federally prescribed discharge limits, and
then treats this omission as dispositive. See Appellant’s
Br. at 27 (asserting that “in the absence of any finding by
[EPA],” courts are not equipped to determine whether “the
medical and scientific uncertainties created by mercury in
the Penobscot create an unacceptable increased risk of
harm” (emphasis in original)).

This postulate proceeds from a two-part premise. First, in
terms of environmental regulation — where important
policy tradeoffs must be made between protection and
progress — the only injuries that satisfy the
criteria for Article III standing are those injuries that
are “unacceptable”; and second, the political branches
alone, not courts, have the expertise and accountability to
determine which injuries society must be prepared to
tolerate. In Mallinckrodt’s view, this need to restrict
cognizable injuries to “unacceptable” injuries is
especially acute where, as in this case, the asserted harms
are probabilistic.

Mallinckrodt provides scant authority for an argument that
has such breathtaking ramifications for the scope of
judicial power. Its notion of acceptability is apparently
derived from a single, quarter-century-old opinion, in
which a respected court cautioned that judges cannot
“formulate policy with respect to what [environmental]
risks are acceptable.” Envtl. Def. Fund v. EPA, 598 F.2d 62,
83-84 (D.C. Cir. 1978). That court, however, was reviewing
a challenge to an EPA regulation based on an alleged lack
of substantial evidence. There is no discussion either of
standing or of Article III’s limits on judicial power. The
opinion, therefore, affords no solid foundation for the
proposition that Mallinckrodt asserts.[fn6]

In a related vein, Mallinckrodt argues that a grant of
standing in this case would be tantamount to judicial
usurpation of regulatory authority because it would permit
“private parties to attack EPA risk assessments
collaterally, using the very risks EPA deemed acceptable to
establish standing and liability, with no deference afforded
to EPA’s policy judgment.” Appellant’s Reply Br. at 27-28.
But the ingredients that comprise what Mallinckrodt sees as
a recipe for disaster — the relatively broad scope
of citizens’ rights to sue polluters, the existence of
liability in such suits, and the less-than-total deference
afforded to agency inaction — all turn on legislative
choices. Congress has elected to create a cause of action
for affected citizens notwithstanding the absence of any
EPA-sponsored standard. While we share Mallinckrodt’s
belief that it would be a usurpation of legislative
prerogative for a court to assume policymaking control over
environmental regulation, it would be no less offensive a
usurpation for a court to refuse to undertake a task
validly entrusted to it by Congress. In the last analysis,
Article III requires a cognizable injury; it does not speak
to the wisdom of the legislature’s actions in providing
redress for that injury.

We add an eschatocol of sorts. In rejecting Mallinckrodt’s
arguments as to standing, we remain confident that Congress
has not asked federal courts to perform tasks that are
beyond their institutional competency. In our view, courts
are capable of assessing probabilistic injuries. Moreover,
nuisance principles contribute heavily to the doctrinal
template that under braces statutes like RCRA, see, e.g.,
Cox v. City of Dallas, 256 F.3d 281, 289 (5th Cir. 2001),
and the tasks involved in adjudicating environmental cases
are well within the federal courts’ accustomed domain.
While courts can (and do) benefit from available agency
expertise, it is an insupportable leap of logic to maintain
that, in the absence of such input, claims of injury are
not cognizable at all.

That ends this aspect of the matter. For the reasons
discussed above, we hold that the plaintiffs have standing
to sue under RCRA § 7002(a)(1)(B). We turn, then, to
the meat of the appeal.