2004 | Cited 0 times | D. Maine | October 14, 2004


Before the Court is Defendant Citizens Communications Company'sMotion to Strike (Docket # 385). Defendant CitizensCommunications Company has also filed a request for oral argumenton this Motion (Docket # 403) pursuant to Local Rule 7(f). Afterreviewing the submissions of the parties made in connection withthe Motion to Strike, the Court has determined that oral argumentis not necessary and, therefore, DENIES Defendant's Motion forSetting of Hearing and Oral Argument (Docket # 403). For thereasons explained below, the Court also DENIES Defendant's Motionto Strike (Docket # 385). I. BACKGROUND

Defendant Citizens Communications Company ("Citizens") filedthe pending Motion to Strike on July 23, 2004. The Motionchallenges the admissibility of the March 3, 2004 Designation ofthe Bangor Landing Site by the Maine Department of EnvironmentalProtection (the "Designation"). Defendant maintains that thisDesignation is inadmissible hearsay and lacks sufficient indiciaof trustworthiness to fall within any exception to the hearsayrule. In response, Plaintiff City of Bangor maintains that theDesignation falls squarely within the public records exception tothe hearsay rule. See F.R.E. 803(8).

A. The Designation

The Designation consists of a seven page report with variousattached maps and tables. The Designation deems the BangorLanding Site an "uncontrolled hazardous substance site" pursuantto Maine's Uncontrolled Hazardous Substances Sites Law,38 M.R.S.A § 1361 et seq. Pursuant to this Maine statute, theCommissioner of the Maine Department of Environmental Protection("Maine DEP") has the authority to designate any site as an"uncontrolled hazardous substance site." See38 M.R.S.A. § 1364(4). The statute explains that theCommissioner may make such a designation if, after investigation,it is determined that "hazardous substances are or were handledor otherwise came to be located" at the site and that the site"may create a danger to public health or safety of any person or to theenvironment." 38 M.R.S.A. § 1365(1). In addition to (and often inconjunction with) a designation, the Commissioner may also orderthat responsible parties "take . . . action to terminate ormitigate the danger or likelihood of danger" caused by thehazardous substances at the site; such an order is commonlyreferred to as a "cleanup order." Id.

On March 3, 2004, the Commissioner issued a designation of theBangor Landing Site finding that hazardous substances are locatedin a tar plume within the Penobscot River portion of the Site.The Commissioner concluded that these hazardous substances "poseor potentially pose a threat or hazard to the health of theenvironment of the State." (Ex. 7 at 6 (attached to Docket #314).) The Designation details the hazardous materials found insamples taken from the tar plume. At least some, if not all, ofthe field work done as part of the pre-Designation investigationwas completed by a contractor, RMT, Inc., who was paid by theCity of Bangor pursuant to a Memorandum of Understanding betweenBangor and Maine DEP. (See Def.'s Mot. to Strike Ex. 7.)

In addition to finding that the tar plume may present a hazard,the Designation names Citizens as a "responsible party" for theBangor Landing Site. See 38 M.R.S.A. § 1362(2) (defining"responsible party" for purposes of the Maine statute). In fact, the findings of the Commissioner identifyCitizens as "the party primarily responsible for the release ofhazardous substances and for the associated contamination of theriverbed and of surface water." (Ex. 7 at 6 (attached to Docket #314).) However, as explained in the text of the Designation,Citizens has not been ordered to take any action to terminate ormitigate the hazard found to be associated with the tar plume.Because the Designation does not include any clean up order,Citizens has not been able to appeal any of the findingscontained in the Designation. See 38 M.R.S.A. § 1365(4).

B. The Pending Motion to Strike

Defendant was apparently prompted to file its Motion to Strikeafter reading footnote four of the July 6, 2004 RecommendedDecision on the City of Bangor's Motion for Partial SummaryJudgment (Docket # 380). In that footnote, the Magistrate Judgenoted that, at oral argument on the motions for summary judgment,Defendant had belatedly objected to Bangor's reliance on theDesignation in support of Bangor's motion for partial summaryjudgment. The Magistrate Judge refused to sustain this belatedhearsay objection, which Defendant had not included in itswritten response to Bangor's motion for partial summary judgment.Rather, the Magistrate Judge relied on the Designation toconclude that the City of Bangor was entitled to a finding as amatter of law "that the tar slick in Dunnett's Cove may present an imminent and substantial endangerment tohealth and the environment." (See Rec. Decision (Docket # 380)at 9.)


Defendant now seeks to exclude the Designation as evidence inany proceedings in this case. Defendant's sole asserted basis forexcluding the Designation in its entirety is hearsay.

In light of the timing of the Motion to Strike, the Court willconsider Defendant's Motion in two procedural contexts: first, asa timely motion in limine seeking an evidentiary ruling prior totrial; and second, as a belated evidentiary challenge to theCourt's reliance on the Designation in resolving Bangor's motionfor partial summary judgment.

A. The Admissibility of the Designation at Trial

In relevant part, the public records exception to the hearsayrule allows for admission of "reports . . . setting forth . . .factual findings resulting from an investigation made pursuant toauthority granted by law, unless the sources of information orother circumstances indicate a lack of trustworthiness." F.R.E.803(8)(C). The Designation in this case undoubtedly satisfies theprima facie elements for admission under this subsection; namely,it is a report of a public agency that sets forth findings of aninvestigation, which was completed pursuant to a Maine statute.Thus, it is Citizens' burden to make a showing of untrustworthiness that warrants exclusion of theentire Designation. See, e.g., United States v. Davis,826 F. Supp. 617, 622 (D.R.I. 1993); see also O'Dell v. Hercules,Inc., 904 F.2d 1194, 1204 (8th Cir. 1990) ("[O]nce a report isconclusively shown to be governed by Rule 803(8)(C) because it iscomprised of findings of a public agency made pursuant to aninvestigation authorized by law, the essential inquiry becomeswhether the report is trustworthy.").

In short, having reviewed all of the exhibits submitted inconnection with the Motion to Strike as well as the Deposition ofKathy Niziolek, the Maine DEP Project Manager for the BangorLanding Site, the Court finds that Citizens has not met itsburden and shown that the Designation should be excluded in itsentirety due to untrustworthiness.

In reaching this conclusion, the Court has considered anyevidence submitted that reflects on "the timeliness of theinvestigation," "the investigator's skill or experience,""whether a hearing was held," and "possible bias" in light of anyevidence that the report was prepared "with a view to possiblelitigation." See Beech Aircraft Corp. v. Rainey,488 U.S. 153, 167 n. 11 (1988) (summarizing the "nonexclusive list of fourfactors" endorsed in the Advisory Committee notes to F.R.E.803(8)). More specifically, the Court has also considered theevidence relating to the relationship and interaction between Maine DEP and Plaintiff City of Bangor prior to the issuance ofthe Designation and what influence, if any, that interaction hadon the findings contained in the evaluation.

Undoubtedly, Defendant's summary and characterization of theevidence provided in support of its motion certainly suggest thatthe Designation may be the product of a biased, incomplete andunfinished investigation, especially with respect to theDesignation's finding that Citizens is "primarily responsible forrelease of hazardous substances." However, once the Defendant's"spin" on the evidence is subtracted, the Designation, as awhole, appears to be a public report produced by an unbiasedagency that is genuinely working to fulfill its duties under theMaine Uncontrolled Hazardous Substances Sites Law,38 M.R.S.A § 1361 et seq. Defendant's attempt to characterize theDesignation as simply the work product of the City of Bangor thatwas rubber stamped by the Maine DEP is not born out by theevidence presented to the Court. Under these circumstances, itwould be improper for this Court to exclude the Designation inits entirety by striking it from the record. Rather, the Courtbelieves that the best course is to allow Defendant to presentany evidence that may impinge on the credibility of theDesignation at trial. See Beech Aircraft, 488 U.S. at 168(describing "the opponent's right to present evidence tending tocontradict or diminish the weight of [any] conclusions [contained in a public record]" as "the ultimatesafeguard"). In light of all the evidence presented, the finderof fact may then decide what weight to give the Designation onany particular issue. In addition, Defendant also remains free toseek the exclusion of particular portions of the Designation thatit believes are either untrustworthy, irrelevant, or undulyprejudicial. See id. at 167-68; see also Lubanski v.Coleco Indus., Inc., 929 F.2d 42, 45 (1st Cir. 1991).

Following this Court's standard practice, this pretrial rulingon a motion seeking to exclude certain pieces of evidence is apreliminary ruling that allows the parties to plan accordinglyfor trial. Defendant is free to renew its hearsay objection tothe Designation or raise any additional objections to any portionof the Designation during trial.

B. The Court's Reliance on the Designation in Connection withResolving Plaintiff's Motion for Partial Summary Judgment

Given the Court's conclusion that the Designation falls withinthe public records exception, it is clear that the RecommendedDecision's reliance on the Designation is not problematic. Cf.Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998)("Evidence that is inadmissible at trial, such as inadmissiblehearsay, may not be considered on summary judgment.") (citationsomitted). However, the Court also notes that none of the evidencesubmitted in connection with the pending Motion to Strike createsa genuine issue of fact with respect to the finding "that the tarslick in Dunnett's Cove may present an imminent and substantialendangerment to health and the environment."1 (See Rec.Decision (Docket # 380) at 9.) Faced with Bangor's motion forpartial summary judgment and its supporting statement of materialfacts, Defendant's burden was to present some evidence from whicha reasonable jury might be able to find in its favor on thisissue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986) (explaining that an issue is "genuine" for purposes ofsummary judgment "if the evidence is such that a reasonable jurycould return a verdict for the nonmoving party"). In other words,Defendant needed to present to the Court evidence from which areasonable jury could conclude that the tar slick in Dunnett'sCove may not present an imminent and substantial endangermentto health and the environment. Even Defendant's belatedsubmissions via the Motion to Strike do not meet this mark. Thus, even having considered Defendant's Motion to Strike andaccompanying exhibits, the Court agrees with and adopts theRecommend Decision's finding as a matter of law that the tarslick may present an imminent and substantial endangerment. Inlight of this conclusion, the Court need not reach Plaintiff'sotherwise valid challenge to Defendant's Motion to Strike on thegrounds that it represents an improper and belated attempt "tohave another bite at the Rule 56 apple." (City's Obj. toCitizen's Mot. to Strike (Docket # 400) at 3.)


For the reasons just explained, Defendant's Motion to Strike(Docket # 385) is DENIED. To the extent the Court has treatedDefendant's Motion as a pre-trial motion in limine, the Motion isDENIED WITHOUT PREJUDICE to the Defendant renewing its objectionto any portion of the Designation at trial.


1. Rather, it appears that the evidence collected by Defendantvia depositions and documents focuses on creating a genuine issueas to the Designation's finding that Citizens is a responsibleparty as well as the Designation's conclusion that Citizens is"primarily responsible" for the tar slick. To the extent thatresponsibility for the tar slick remains an issue that will beresolved at trial, Defendant is free to move to exclude theseportions of the Designation upon showing that they areuntrustworthy or otherwise excludable under the Federal Rules ofEvidence.

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