In an article appearing in the last Section newsletter, I addressed the issue of just how beneficial a “no further action” letter may be in a given situation. The main point that I made was that a “no further action” letter cannot be read as indicating that the property has no other environmental conditions or that no additional environmental response action will be required.

In this article, I address the issue of whether a “no further action” letter is admissible in a legal proceeding.

A “no further action” letter may be admissible in a proceeding by a property owner against a party causing contamination on the property. In the case of Langfan v. O’Donnell, 2012 WL 10863 (W.D. Mich. January 3, 2012), a court determined that a “no further action” letter issued by the Michigan Department of Environmental Quality was admissible in a separate legal action filed in state court by the owner of the property against Goodyear Tire & Rubber Co., the tenant. The “no further action” letter was issued following the completion of assessment activities and a soil removal action at an auto service center operated by Goodyear. In the separate legal proceeding, the plaintiff alleged that Goodyear was evading its remedial obligations and sought damages for undue waste, for failing to return the property in substantially the same condition as when let, and for indemnification.[1] The court noted that both Goodyear and the plaintiff were free to make arguments as to the “no further action” letter’s scope and weight. Id., at *5.

In the case of Suzuki v. Helicopter Consultants of Maui, Inc., 2016 WL 6275385 (D.C. Hawaii, October 26, 2016), the court, on a motion in limine filed by the plaintiff, held that a “no further action” letter issued by the Hawaii Department of Health was admissible. The plaintiff was the owner of property where a helicopter crash occurred. The defendant was the owner and/or operator of the helicopter. It appeared that at the time of the crash, approximately 60 gallons of fuel was on board the helicopter, and the impact of the crash produced a large fire at the property. Environmental assessment work did reveal that at one location petroleum hydrocarbons existed at a level exceeding Hawaii’s “unrestricted” action levels. No soil removal action was required by the Department. The plaintiff sought damages and injunctive relief and alleged that the defendant had failed to properly remediate the crash site.

The court held that the “no further action” letter was relevant under Rule 401 of the Federal Rules of Evidence and admissible under Rule 803(8) of the Federal Rules of Evidence. Rule 803 outlines the exceptions to the rule against hearsay. More specifically, Rule 803(8) permits, in civil actions, the admission of a record or statement of a public office that sets out factual findings from a legally authorized investigation, as long as the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. The court concluded that the “no further action” determination was a factual finding of a government agency and that the plaintiff had failed to demonstrate that the letter, or the circumstances under which it was obtained, were untrustworthy. The court was not convinced of the plaintiff’s argument that the “process” had all the markings “of a travesty of cronyism and special treatment” or a “virtual hijacking.” The plaintiff complained that he was not included within the process of obtaining the “no further action” letter and that the Department of Health was not provided complete information. The court determined that such evidence, and particularly evidence that the Department had failed to consider certain information, goes to the weight and scope of the letter’s conclusions.

As an endnote, in the trial of the merits in both the Langfan and the Suzuki litigation, the plaintiff apparently prevailed, either in whole or in part, on his claims associated with the contamination that remained on the property.

— Randy Womack is an attorney with Glankler Brown PLLC in Memphis and serves on the TBA Environmental Law Section Executive Committee.