ELR Citation: ELR 20091
No(s). CA 90-0484P (D.R.I. May 11, 1993)

The court holds that a remedial investigation report made by a private hazardous waste cleanup consulting firm under the direction of the U.S. Environmental Protection Agency (EPA) pursuant to §104(b)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is admissible into evidence as public record. The court first holds that the report may be entered into evidence before trial through a motion in limine. The court next holds that the remedial project site manager's identification of the report as a true and correct copy which was of the type EPA routinely kept served to authenticate the report. The court holds that the report is relevant, as it contains chemical analyses pertinent to whether there has been a release or threatened release of hazardous substances, an element of CERCLA liability, and to whether the substances for which alleged generators and transporters might be liable were identical to the wastes found at the site. The court holds that although the report is a collection of out-of-court statements offered to prove the truth of the matters asserted therein, it is admissible under the Federal Rules of Evidence 803(8)(c) public-record exception to the hearsay rule. Although initially drafted on a contract basis by a private firm, it is a public agency report because EPA closely supervised the investigation, which was made pursuant to the authority granted to EPA by CERCLA §104(b) and the report sets forth factual findings resulting from the investigation. Moreover, the defendants failed to show that the entire document was untrustworthy or that any one section was untrustworthy, despite the existence of minor errors and methodological problems.

[A previous decision in this litigation is published at 23 ELR 20082.]

Counsel for Plaintiff

Vicki A. O'Meara, Bernard P. Bell
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Deming E. Sherman
Edwards & Angell
2700 Hospital Trust Tower, Providence RI 02903
(401) 274-9200