A federal court in Oregon has denied a motion for summary judgment on a cost-recovery claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Roberts v. Heating Specialist Inc., No. 3:12-cv-1820 (D. Ore. 4/29/13).

Plaintiffs asserted that a contractor had contaminated a residential rental property with mercury when removing and replacing a boiler at the premises. Mercury was discovered in the basement and on the property’s driveway, and plaintiffs sued to recover response costs. Defendants moved for summary judgment, asserting “no genuine dispute that the old boiler system did not contain mercury.” Defendant also submitted the declaration of an individual who was present when the old boiler was replaced. He stated that “neither the old boiler and its associated components, nor the new boiler and its associated components, contained mercury.”

The U.S. Environmental Protection Agency (EPA) had separately investigated and responded to the conditions, and plaintiffs submitted a declaration from EPA’s on-scene property coordinator, who described finding mercury beads and concluded that it appeared the mercury was released either from the old boiler or the new one. According to defendant, the facts stated in the declaration were based on hearsay and therefore not admissible in the context of the summary judgment motion. The court, however, found that, at the summary judgment stage, defendant would have to prove that the information “cannot be presented in a form that would be admissible in evidence” to exclude it from consideration. The court also found that the public record exception to the hearsay rule would apply to the declaration and that adequate indicia of trustworthiness would render it admissible.