Sultan Corp. v. Dep't of Envtl. Prot.

Decision Date05 April 2022
Docket NumberAnd-21-262
PartiesSULTAN CORPORATION v. DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.
CourtMaine Supreme Court

2022 ME 21

SULTAN CORPORATION
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.

No. And-21-262

Supreme Court of Maine

April 5, 2022


Argued: March 9, 2022

Theodore A. Small, Esq. (orally), Skelton, Taintor & Abbott, Lewiston, for appellant Sultan Corp.

Aaron M. Frey, Attorney General, Margaret A. Bensinger, Asst. Atty. Gen. (orally), and Jeffrey M. Skakalski, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellees Department of Environmental Protection at el.

Panel: STANFILL, C.J., and MEAD, JABAR, HUMPHREY, HORTON, and CONNORS, JJ. [*]

MEAD, J.

[¶1] Sultan Corporation appeals from a decision of the Superior Court (Androscoggin County, Stewart, J.) affirming a decision of the Board of Environmental Protection that upheld a cleanup order issued pursuant to 38 M.R.S. § 1365 (2021) by the Commissioner of the Department of Environmental Protection against Sultan for hazardous substances located on its property. Because the Board did not determine the threshold issue of whether the third-party defense afforded by 38 M.R.S. § 1367(3) (2021) is available to a party seeking to invalidate a Commissioner's order issued pursuant to 38 M.R.S. § 1365, we vacate and remand to the Board to make that determination.

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I. BACKGROUND

[¶2] The following facts are derived from the Board's findings, which are supported by competent evidence in the record. See Angell Family 2012 Prouts Neck Tr. v. Town of Scarborough, 2016 ME 152, ¶ 3, 149 A.3d 271. Sultan purchased the site on June 25, 2003, which contained a fifteen-unit residential apartment building. Beal's Laundry had operated a dry cleaning facility on the site from approximately 1950 to 1986. In 2013, as part of its evaluation of former dry cleaning operations, the Department of Environmental Protection conducted testing at the site and discovered perchloroethylene and trichloroethylene-volatile and potentially hazardous organic compounds associated with dry cleaning operations-contaminating the soil and groundwater. Subsequent testing identified these compounds and their breakdown products beneath the pavement in front of the site, in soil gas beneath the site building, in the indoor air of the site building, in the soil along subsurface utility lines, and in the indoor air of buildings on several surrounding properties.

[¶3] Following an assessment and recommendation from the state toxicologist, the Commissioner concluded that these chemicals posed a health risk to people living on the site because vapors were found in dangerous

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concentrations inside the site's residential units. To mitigate the effects of the vapors and associated hazards on the occupants of the site building, the Department installed and operates a sub-slab depressurization system (SSDS) on the site. The SSDS redirects emanating vapors away from occupied spaces in the building but does nothing to remove the source of the contaminants or prevent their migration to other properties. According to the Department's lead engineer, if the source of the contaminants is not addressed, the high levels of contamination in the soil and groundwater will remain for "generations to come" and the SSDS will...

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