October 31, 1995 United States Court of Appeals For the First Circuit
No. 94-2286
COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee,
v.
BLACKSTONE VALLEY ELECTRIC COMPANY, Defendant, Appellant.
ERRATA SHEET
The opinion of the Court issued October 6, 1995, is amended as follows:
On page 28, line 23 Substitute "action" for "rulemaking".
October 11, 1995 United States Court of Appeals For the First Circuit
No. 94-2286 COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee,
ERRATA SHEET ERRATA SHEET
The opinion of this Court issued on October 6, 1995 is corrected as follows:
On the cover sheet, line 10: substitute "Joseph L. Tauro" for "Joseph P. Tauro"; and
On page 14, line 8: substitute "plain meaning" for "law".
United States Court of Appeals For the First Circuit
No. 94-2286 COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph P. Tauro, U.S. District Judge]
Before
Cyr, Boudin, and Lynch, Circuit Judges.
John Voorhees, with whom David F. Goossen, Isaacson, Rosenbaum,
Woods & Levy, P.C., David A. Fazzone, P.C., and McDermott, Will &
Emery were on brief, for appellant.
Karen McGuire, Assistant Attorney General of Massachusetts, with
whom Scott Harshbarger, Attorney General of Massachusetts was on
brief, for appellee. Catherine Adams Fiske, Attorney, United States Department of
Justice, with whom Lois J. Schiffer, Assistant Attorney General, Anne
S. Almy and Albert M. Ferlo, Jr., Attorneys, United States Department
of Justice, and Thomas H. Beisswenger, United States Environmental
Protection Agency were on brief, for the United States as amicus curiae.
October 6, 1995
LYNCH, Circuit Judge. The Commonwealth of LYNCH, Circuit Judge.
Massachusetts seeks to recover response costs under CERCLA
and Mass. Gen. L. ch. 21E from Blackstone Valley Electric Co.
("BVE") for the removal of ferric ferrocyanide ("FFC") from a
waste site in North Attleboro, Massachusetts. The
Commonwealth's ability to recover its response costs, said to
be $5.8 million, turns largely on the question of whether FFC
is a "hazardous substance" within the meaning of CERCLA. The
broader concern raised by this case is identifying who should
decide that question and by what process. We hold that
neither CERCLA nor the existing EPA regulations clearly
establish whether FFC is a hazardous substance, and that the
district court erred in trying to resolve the question on the
Commonwealth's motion for summary judgment, in the face of
warring expert affidavits, where there is no textual plain
meaning to resolve the issue. Invoking the doctrine of
primary jurisdiction, we hold that the EPA should, as
Congress intended, address the question in the first
instance. Accordingly, we vacate the grant of partial
summary judgment and order referral to the EPA for an
administrative determination. In so doing we reject the
EPA's argument as amicus curiae in this court that it has
effectively answered the question of whether FFC is a CERCLA
"hazardous substance" by adopting standard testing protocols
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for effluent discharge regulations promulgated under the
Clean Water Act.
I. Factual Background
Like many other environmental cases, the story of
this case starts in the last century. Before the
construction of the natural gas pipeline system, gas for
consumer use in heating, lighting, and cooking was often
manufactured from coal at localized facilities. According to
one 1985 study commissioned by the EPA, there were some 1500
such manufactured gas plants in operation throughout this
country between 1889 and 1950. The cleanup of the waste
byproducts of the manufacturing process, which often were
buried on site or deposited in landfills, has been a source
of modern environmental litigation. See, e.g., John Boyd Co.
v. Boston Gas Co., 1992 WL 212231, *1 (D. Mass. Aug. 18,
1992), aff'd, 992 F.2d 401, 403-04 (1st Cir. 1993);
Interstate Power Co. v. Kansas City Power & Light Co., 992
F.2d 804, 805-06 (8th Cir. 1993).
An important step in the gas manufacturing process
was the purification of the gas obtained from the coal. One
typical purification method involved pumping the untreated
gas through "purifier boxes" containing wood chips coated
with iron oxide. As the untreated gas passed through the
boxes, it reacted chemically with the coated wood chips,
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causing unwanted substances to be filtered out. The
byproducts of the purifying chemical reactions would build up
on the wood chips. One such byproduct was a blue substance
called ferric ferrocyanide (more commonly, Prussian Blue).
Eventually, the spent wood chips still bearing the
byproducts of the chemical purification process would
typically be incinerated or buried.
In the early 1980's, blue-colored wood chips and soil
were discovered in a landfill near a residential area in
North Attleboro, Massachusetts. Between July 1984 and May
1986, the Massachusetts Department of Environmental
Protection ("DEP") excavated the site to remove the blue soil
and wood chips. The blue substance on the wood chips was
identified as ferric ferrocyanide, and the wood chips were
identified as "purifier box waste" from the coal gasification
process. The DEP determined that the FFC-coated chips at the
site had been transported there from a gas facility that had
been operated by BVE's direct corporate predecessor in Rhode
Island from 1920-1961. The Commonwealth subsequently sued
BVE as a generator of the FFC to recover its cleanup costs,
pursuant to the relevant provisions of CERCLA and the
analogous Massachusetts state statutes.1
II. The Statutory Framework
1. The only issue presented here is the CERCLA one.
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A. The "Hazardous Substance" List
CERCLA provides state and federal governmental
authorities with broad power to clean up waste sites, and
then to seek recovery of response costs from responsible
parties. 42 U.S.C. 9604, 9607; see generally Dedham
Water Co. v. Cumberland Farm Dairy, Inc., 889 F.2d 1146, 1150
(1st Cir. 1989). One of the predicates to CERCLA liability
is the release or threatened release of a "hazardous
substance" at the site.
A "hazardous substance" is defined in CERCLA, 42
U.S.C. 9601(14), by incorporation of certain lists of
substances, wastes, and pollutants identified in a number of
other environmental statutes, including the Clean Water Act
("CWA"), 33 U.S.C. 1251 et seq.2 CERCLA requires the
Administrator of the EPA to promulgate and revise regulations
designating as additional "hazardous substances" any
substances which, "when released into the environment may
present substantial danger to the public health or welfare or
the environment . . . ." 42 U.S.C. 9602(a). The EPA has
codified a consolidated list of hazardous substances
2. CERCLA's definition of "hazardous substance" also incorporates the pollutants listed in the Solid Waste Disposal Act, as amended by the Resource Conservation and Control Act, 42 U.S.C. 6921 et seq., the Clean Air Act, 42
U.S.C. 7401 et seq., and the Toxic Substances Control Act,
15 U.S.C. 2601 et seq. The parties agree that only the CWA
list is pertinent here.
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subsuming all of the statutory lists incorporated by CERCLA,
at 40 C.F.R. 302.4, Table 302.4 ("Table 302.4").3
The substance FFC is not specifically named in any of
the statutory lists of substances incorporated by CERCLA and
hence does not appear in Table 302.4. The EPA has never
taken official action pursuant to its authority under 42
U.S.C. 9602(a) specifically to add FFC to the CERCLA
hazardous substance list. Table 302.4 does list, however, a
broad category of compounds "cyanides" which, in turn,
the Commonwealth claims, does encompass FFC.
B. "Cyanides"
The category "cyanides" in Table 302.4 has its
origins in the CWA. The EPA was required to promulgate,
within a short period following the CWA's enactment, a list
of "any toxic pollutant or combination of such pollutants" to
be subject to regulation under the statute. See CWA, Pub. L.
No. 92-500, 307(a)(1), 86 Stat. 816, 856, 1972 U.S.C.C.A.N.
951, 1000. Pursuant to this directive, an ad hoc EPA work
group developed a proposed list of 65 toxic pollutants.
After public notice and comment, this list (the "CWA list")
was adopted by Congress, see 33 U.S.C. 1317(a), published
3. The Massachusetts analogue to CERCLA defines "hazardous material" to include all "hazardous substances" under CERCLA. See Mass. Gen. L. ch. 21E, 2.
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by the EPA, see 43 Fed. Reg. 4108-09 (Jan. 31, 1978), and
codified, see 40 C.F.R. 401.15.
In addition to identifying various specific, discrete
chemical compounds (e.g., "benzene," "2,4-dichlorophenol"),
the CWA list also identifies several groups of compounds
associated with particular elements (e.g., "arsenic and
compounds," "zinc and compounds"), and classes of more
generally denominated compounds (e.g., "nitrosamines,"
"chlorinated ethanes"). One of the latter such classes of
compounds on the list is "cyanides." The dispute in this
case has centered on whether the term "cyanides" in the CWA
list (and incorporated into Table 302.4) includes FFC,
thereby bringing FFC within the scope of CERCLA's definition
of "hazardous substance."
III. Proceedings in the District Court
After discovery, the Commonwealth moved for partial
summary judgment as to liability against BVE, claiming that,
as a matter of law, FFC is a "hazardous substance" within the
meaning of CERCLA. The Commonwealth argued FFC falls within
the "plain meaning" of the term "cyanides" in Table 302.4.4
4. To avoid confusion, we observe that neither party attaches controlling significance to the fact that the common name of the substance at issue ferric ferrocyanide
contains the word "cyanide." In fact, according to modern chemical nomenclature conventions, the proper name for FFC is "iron(III) hexacyanoferrate(II)." The appearance of the word "cyanide" within the name "ferric ferrocyanide" does not factor into the interpretation.
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After a hearing on the Commonwealth's motion, the
district court directed the parties to "focus only on the
meaning of the term ['cyanides'] as it is understood in the
general scientific community." Commonwealth of Mass. v. BVE,
Civ. No. 87-1799-T, Memorandum at 5 (D. Mass. May 23, 1990).
Accordingly, BVE filed expert affidavits attesting that the
plain meaning of "cyanides" does not include the substance
FFC, and the Commonwealth filed expert affidavits attesting
that it does.
Additionally, the Commonwealth attempted to solicit
the EPA's involvement in the case. Before filing its motion,
the Commonwealth had asked the EPA to participate in the case
as amicus curiae, but the EPA had refused. After the summary
judgment hearing, the Commonwealth asked the EPA to provide
an affidavit stating that the EPA's own definition of
"cyanides" encompasses FFC. The EPA again declined the
Commonwealth's invitation. Instead, the EPA wrote a letter
to the Massachusetts Attorney General's office, signed by
Stephen D. Luftig, the Director of EPA's Emergency Response
Division (the "Luftig Letter"). The letter purported to
describe the EPA's administrative view of the status of FFC
vis- -vis the CERCLA/CWA category of "cyanides." The
Commonwealth provided this letter to the district court as
additional support for its motion.
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The district court granted the Commonwealth's motion
for partial summary judgment. Commonwealth of Massachusetts
v. Blackstone Valley Electric Co., 777 F. Supp. 1036 (D.
Mass. 1991). The district court made no mention of the
Luftig Letter in its decision. It relied instead upon two
sentences of text concerning chemical testing procedures for
cyanides contained in a reference publication called
"Standard Methods." See American Public Health Ass'n et al.,
Standard Methods for the Examination of Water and Wastewater
(18th ed. 1992). One of the Commonwealth's experts had
averred that Standard Methods is a "'universally accepted
environmental chemistry lab testing manual in the general
scientific community.'" 777 F. Supp. at 1038 n.3 (quoting
expert affidavit). Based on its reading of that
publication,5 the district court concluded that FFC was
properly classified as a "complex cyanide," that "[t]he plain
meaning of cyanides includes complexes such as ferric
ferrocyanide," and that FFC was therefore a hazardous
substance within the meaning of CERCLA. Id. at 1039. The
5. The district court focused on the following paragraph:
Cyanide refers to all of the CN groups in cyanide compounds that can be determined as the cyanide ion, CN-, by the methods used. The cyanide compounds in which cyanide can be obtained as CN- are classed as simple and complex cyanides.
777 F. Supp. at 1038 (quoting Standard Methods, supra, at 4-
18).
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district court rejected BVE's arguments and expert affidavits
supporting a contrary result and added: "Blackstone's
argument, essentially, is that FFC should not be on the list.
This is a contention that Blackstone should present to the
EPA, not to this court." Id.6
We disagree with the district court's conclusions
about the "plain meaning" of "cyanides." We have
considerable sympathy, however, for its sentiment that BVE's
arguments about the status of FFC are best suited for
presentation to the EPA.
IV. Discussion
We review the district court's summary judgment order
de novo. See Vasapolli v. Rostoff, 39 F.3d 27, 32 (1st Cir.
1994). Our review of the district court's interpretation of
the relevant statutory framework also is plenary. See Estey
v. Commissioner, Maine Dep't of Human Services, 21 F.3d 1198,
1201 (1st Cir. 1994). In assessing whether the Commonwealth
is entitled to judgment as a matter of law, we must regard
the record and draw all inferences in a manner favorable to
BVE. Only if, viewed in that light, the record discloses no
6. Later, based in part on its grant of partial summary judgment against BVE on the FFC issue, the court entered summary judgment in favor of the Commonwealth on the issue of BVE's liability as a generator under CERCLA, 42 U.S.C. 9607(a)(3). See Commonwealth of Mass. v. Blackstone Valley
Electric Co., 808 F. Supp. 912, 914-16 (D. Mass. 1992). BVE
has not appealed from the latter order.
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genuine issue of material fact will we uphold the grant of
summary judgment. FDIC v. Bay Street Dev. Co., 32 F.3d 636,
639 (1st Cir. 1994).
A. Absence of Plain Meaning
The Commonwealth and BVE both argued to the district
court that the term "cyanides" has a "plain meaning," but
were sharply at odds as to whether that meaning encompasses
FFC. The district court endorsed the plain meaning approach,
see 777 F. Supp. at 1038, and agreed with the Commonwealth
that the plain meaning of "cyanides" includes FFC. Id. at
1039. We find that the district court's reliance on the
plain meaning approach was misplaced on the facts here.
Of course when the words of a statutory provision are
clear, the provision's plain meaning must govern its
application, unless a palpably unreasonable outcome would
result. See, e.g., Hogan v. Bangor & Aroostook Railroad Co.,
61 F.3d 1034, 1037 (1st Cir. 1995); Pritzker v. Yari, 42 F.3d
53, 67-68 (1st Cir. 1994). Yet, as the qualifications that
are a part of the plain meaning rule suggest, that rule does
not provide a panacea for every problem of statutory
construction. Words can be ambiguous, often materially so.
See Greenwood Trust Co. v. Commonwealth of Mass., 971 F.2d
818, 825 (1st Cir. 1992) ("[T]he plain-meaning doctrine is
not a pedagogical absolute."), cert. denied, 113 S. Ct. 974
(1993). When ambiguity is identified, a dispute about a
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statute's or regulation's proper construction cannot be
resolved simply by placing the gloss of "plain meaning" on
one competing interpretation. See, e.g., In re Jarvis, 53
F.3d 416, 419 (1st Cir. 1995) (finding plain meaning inquiry
inapposite where relevant language was indeterminate); United
States v. O'Neil, 11 F.3d 292, 294-96 (1st Cir. 1993) (same,
where term "revoke" was ambiguous in relevant context); Isaac
v. Harvard Univ., 769 F.2d 817, 820 (1st Cir. 1985) (same,
where terms "proceedings" and "terminated" were ambiguous as
used); cf. Allen v. Adage, Inc., 967 F.2d 695, 700 (1st Cir.
1992) (finding term "reduction-in-force" to be ambiguous and
therefore "unplain" in context of an ERISA plan).
Here, both BVE and the Commonwealth argue that the
plain meaning of "cyanides" can be ascertained by consulting
"the scientific community." To this end, they have filled
the record with competing expert affidavits setting forth
contradictory views (each ostensibly authoritative) as to
whether FFC is a member of the category "cyanides."
But no "plain" meaning of the term "cyanides" can be
identified from among these conflicting expert affidavits.
It is true that, as a general rule of construction, when a
statute contains "technical words or terms of art, 'it [is]
proper to explain them by reference to the art or science to
which they [are] appropriate.'" Corning Glass Works v.
Brennan, 417 U.S. 188, 201 (1974) (bracketed alterations in
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original) (quoting Greenleaf v. Goodrich, 101 U.S. 278, 284
(1880)).
Assuming that the "scientific community" is the
appropriate body by reference to which the meaning of
"cyanides" should be determined, the basic indeterminacy
nonetheless remains. The "scientific community" is not a
monolithic entity that has spoken here in a single
authoritative voice. As one of BVE's experts stated, members
of different disciplines within the scientific community at
large are apt to take sharply contrasting approaches and to
give conflicting answers to the question whether FFC can
properly be classified as one of the "cyanides." Thus, the
Commonwealth's key expert, an analytical chemist, states
confidently that "[t]here can be no dispute . . . that
cyanides and all other chemical substances are defined based
on chemical reactivity [emphasis added]," and thus
understands "cyanides" to include "all those chemical
compounds containing the negatively charged cyanide ion, CN-"
and that "can yield the free cyanide ion" in laboratory
conditions. Then, stating that "there is no doubt that the
CN moiety in iron cyanide complexes is uni-negative" and that
FFC does release the free cyanide ion when boiled in
concentrated sulfuric acid, he concludes that FFC is properly
categorized as one of the "cyanides." On the other hand,
BVE's expert (who was one of the consultants to the EPA who
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helped devise the CWA list) asserts just as confidently that
most scientists other than analytical chemists "would define
'cyanides' as substances that are toxic due to the CN group."
Stating that FFC is not toxic and does not release
"toxicologically significant doses of [free] cyanide under
environmental conditions [emphasis added]," BVE's expert
concludes that FFC is not properly classified as one of the
"cyanides" within the meaning of CERCLA.
The term "cyanides" as it appears in Table 302.4 is,
we believe, ambiguous in the context of this case. The term
suffers from an ambiguity that might be classified as a
"categorical indeterminacy." See Clark D. Cunningham et al.,
Plain Meaning and Hard Cases, 103 Yale L.J. 1561, 1585 (1994)
(reviewing Lawrence M. Solan, The Language of Judges (1993)).
At least on the record before us, the category "cyanides"
does not admit of crisply defined boundaries, and resolution
of the disagreement about whether FFC falls within those
fuzzy boundaries requires a value-laden choice from among
competing interpretive assumptions, a choice that cannot be
made through mere inspection of the term's normal or ordinary
usage.
Mindful that we must view the record in the light
most favorable to BVE, this indeterminacy cannot be resolved
by designating the Commonwealth's rendition of the meaning of
"cyanides" as "plain." From the viewpoint of a federal court
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presented with facially credible expert affidavits that
directly contradict each other on the issue, the question
whether "cyanides" in Table 302.4 encompasses FFC for
purposes of CERCLA liability cannot be answered as a matter
of law.7
B. Legislative and Regulatory History
Having found considerable ambiguity in the word
"cyanides," we turn to whether the history of the CWA
provides a clearer understanding. The legislative history of
the statute contains no express congressional guidance as to
the scope of the term. The regulatory history of the CWA
toxic pollutant list, however, does provide substantial
reason for skepticism about the Commonwealth's and the EPA's
claim that "cyanides" encompasses FFC.
The list of substances and classes of substances
currently codified at 40 C.F.R. 401.15 (and incorporated
into Table 302.4) was developed by the EPA pursuant to
Congress' directive to produce a list of toxic pollutants to
be subject to regulation under the CWA. See CWA, Pub. L. No.
92-500, 307(a)(1), 86 Stat. 816, 1972 U.S.C.C.A.N. 951,
1000. Congress defined "toxic pollutants" as those
"pollutants, or combination of pollutants" that were believed
7. We also note that the EPA has not argued in its amicus brief that the plain meaning of cyanides in Table 302.4 includes FFC.
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to "cause death, disease, behavioral abnormalities, cancer,
genetic mutations, physiological malfunctions (including
malfunctions in reproduction) or physical deformations" in
organisms or their offspring. 33 U.S.C. 1362(13).
Congress expressly instructed the EPA in devising the list to
"take into account the toxicity of the pollutant, its
persistence, degradability, the usual or potential presence
of the affected organisms in any waters, the importance of
the affected organisms and the nature and extent of the
effect of the toxic pollutant on such organisms." CWA,
supra, 307(a)(1), 86 Stat. at 856, 1972 U.S.C.C.A.N. at
1000.
After public notice and an initial period for public
comment, the EPA published a proposed list of toxic
pollutants for regulation under the CWA. 38 Fed. Reg. 24342
(Sep. 7, 1973). This original proposed list did not include
the category "cyanides." Instead, it listed "cyanide and all
cyanide compounds." 38 Fed. Reg. at 24344. The EPA
commentary accompanying the proposed list noted that
"[c]yanide is on the list because of its high order of
toxicity to aquatic life." Id. The text then acknowledged
that some commentators had "objected to inclusion of 'all
cyanide compounds'" and had "argued that only compounds which
dissociate in water to form toxic concentrations of cyanide
ion or hydrogen cyanide should be included." Id. Thus,
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there was some public concern that the listing of "all
cyanide compounds" was overinclusive, and that only a subset
of "cyanide compounds" compounds which, in environmental
conditions would produce toxic results should be included
on the CWA list. The EPA's commentary stated that the
"proposed effluent standards will take these comments into
account . . . ." Id. (emphasis added). On the final CWA
list of toxic pollutants (as adopted by Congress), the
category "cyanide and all cyanide compounds" was replaced
with the category "cyanides." See 40 C.F.R. 401.15.
Viewed in the light most favorable to BVE, the
evidence indicates that FFC is highly stable, insoluble in
water, and completely non-toxic to human and aquatic life.
Against the backdrop of (1) the definition of "toxic
pollutant" contained in the CWA; (2) the congressional
directive that required the EPA to "take into account the
toxicity" of pollutants in producing the CWA list; (3) the
EPA's own comment that "cyanide is on the list because of its
high order of toxicity"; and (4) the objections that appear
to have precipitated the change from "cyanide and all cyanide
compounds" to "cyanides", there would seem substantial reason
to doubt that FFC, claimed to be a non-toxic substance, could
properly be deemed to fall within the category "cyanides."
The history of the CWA list tends to support BVE's claim that
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the category "cyanides" was never contemplated to encompass
substances such as FFC for purposes of the CWA or CERCLA.
This leaves the question of whether the EPA has
adopted elsewhere an official agency interpretation that
clearly includes or excludes FFC as a CERCLA hazardous
substance. We find that no such agency interpretation has
been established.
C. Absence of A Regulatory Definition
In its amicus brief, the EPA distances itself from
the parties' and district court's "law" approach. It argues
that the initial decision whether FFC is a "hazardous
substance" is one that must be left to the EPA. We agree.
It further argues, however, that although no
definition of "cyanides" can be found in the regulations
identifying CERCLA hazardous substances, it is spelled out
elsewhere in the applicable regulatory framework, and that it
encompasses FFC. On this score, we are not persuaded, for a
number of reasons. The regulatory text itself does not
support the argument; the argument leads to results which are
overbroad and defy common sense; the EPA has itself taken
inconsistent positions; the position is articulated solely
and for the first time in a litigation posture; and policy
reasons dictate against the approach proposed by the EPA.
1. Absence of Rules Specifically Concerning FFC
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The EPA has clearly not acted pursuant to its
authority under CERCLA, 42 U.S.C. 9602(a), nor under the
CWA, 33 U.S.C. 1317(a)(1), to promulgate a rule
specifically listing FFC as a "hazardous substance" (CERCLA)
or a "toxic pollutant" (CWA). Neither the Commonwealth nor
amicus contends otherwise. The EPA has also never issued a
rule specifically for the purpose of defining the scope of
the term "cyanides." The EPA has in the past resorted to its
rulemaking authority to provide clear guidance to the public
as to the scope of at least six other substances or classes
of substances listed as CWA toxic pollutants, see 40 C.F.R.
129.4, but it never has done so with respect to the term
"cyanides." Indeed, the Luftig Letter submitted by the
Commonwealth to the district court acknowledges that "[t]he
term 'cyanides' is not specifically defined in the CWA or, as
far as we can determine, in the legislative history . . . ."
2. The "Total Cyanide" Test
The EPA's central focus in its amicus brief is on
certain regulations establishing a testing protocol for the
analysis of cyanide in effluent discharges under the CWA.
The EPA contends that this test procedure provides the legal
definition of "cyanides," and that FFC falls within this
definition. We conclude that this contention is not
supported by the relevant regulatory framework, and that the
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testing protocol referred to cannot properly be interpreted
to provide the definition of "cyanides" under CERCLA.
Independent of its authority to designate hazardous
substances and toxic pollutants under CERCLA and the CWA, the
EPA also has authority and responsibility under the CWA to
"promulgate guidelines establishing test procedures for the
analysis of pollutants that shall include the factors which
must be provided in any [CWA compliance certification or
permit application]." 33 U.S.C. 1314(h). Pursuant to this
delegation, the EPA has issued regulations incorporating test
procedures for measuring the level of certain "parameters" in
a water or waste sample. See 40 C.F.R. 136.3. One of the
listed parameters is "cyanide-total, mg/L." Id. The
regulation indicates that the procedures to be used in
measuring "cyanide-total" in effluent discharges are those
described in the Standard Methods reference publication.
Amicus places overriding significance upon one of these
procedures, called the "total cyanide" test. See Standard
Methods, supra, at 4-20, 4-23. This procedure involves
boiling the sample to be tested in concentrated sulfuric
acid. Compounds that contain the CN group in their chemical
composition, it is said, will release detectable amounts of
free cyanide when subjected to the procedure.
Amicus claims that, under the EPA's regulations, any
substance that releases cyanide upon being boiled in sulfuric
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acid under the "total cyanide" test qualifies as one of the
"cyanides" for purposes of CERCLA liability. It further
claims that because FFC releases some cyanide when subjected
to the "total cyanide" test, it is necessarily one of the
"cyanides" within the meaning of CERCLA. We do not think
that this conclusion follows.
The EPA's own regulations do not use the test
procedures identified at 40 C.F.R. 136.3 (including the
Standard Methods protocol) to define the scope of CWA- or
CERCLA-designated categories of toxic pollutants or hazardous
substances. The regulations never state that any substance
that releases cyanide under the "total cyanide" test
qualifies as one of the "cyanides" for purposes of CERCLA.
Rather, the regulations themselves say something quite
different. The regulation that specifically governs the
applicability of the identified test procedures states that
the procedures are intended to "perform the measurements"
required in connection with (a) Clean Water Act permit
applications, (b) discharge reports, and (c) certain
compliance certifications issued by states. 40 C.F.R.
136.1 (emphasis added). None of these three expressly
designated uses for the test procedures is applicable here,
and none has anything to do with providing a definition of
any class of pollutants. The regulations intend the "total
cyanide" procedure to serve only the purpose of measuring the
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total CN8 by weight in the chemical composition of a given
waste sample, not to define which chemical substances count
as a member of the category "cyanides." Thus, even if FFC
can be measured for "total cyanide" composition under the
Standard Methods procedure,9 it surely does not follow as a
matter of law or logic that FFC is one of the "cyanides" for
purposes of CERCLA liability.
A further difficulty with amicus' attempt to define
"cyanides" by reference to the total cyanide test is that
such a definition may lead to nonsensical results. One of
BVE's experts observes that there are many everyday
substances that contain the CN group in their chemical
composition (e.g., vitamin B-12, the synthetic fiber Orlon,
and a number of common medicines such as Lomotil), and some
or all of these substances, like FFC, would also release
cyanide when subjected to the conditions of the total cyanide
test.10 Yet no one, including the EPA, would categorize
8. "CN" is the chemical formula of the cyanide molecule.
9. BVE's expert asserts that because of the properties of FFC, the total cyanide test cannot actually give an accurate
quantification of the total CN composition by weight in a given sample of FFC. The Commonwealth's expert appears to agree on this point, but states that because FFC does nevertheless yield some cyanide when subjected to the
procedure, FFC is one of the "cyanides."
10. The Commonwealth's expert appears to deny that vitamin B-12 would release cyanide in a total cyanide test. For purposes of deciding the Commonwealth's summary judgment motion, we credit BVE's position on this factual issue, as we must. The EPA in its amicus brief does not attempt to
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vitamin B-12, for example, as one of the "cyanides" within
the meaning of the CWA or CERCLA. BVE's experts have averred
that FFC's chemical structure and composition are much more
similar to substances like vitamin B-12 than to toxic
substances like potassium cyanide. Assuming BVE is correct,
as we must here, a rule that defined "cyanides" to include
all substances that release any cyanide when subjected to the
total cyanide test would appear to be untenably
overinclusive.11
The unsettled nature of the status of FFC vis- -vis
the category "cyanides" is further demonstrated by at least
one documented situation in which the EPA has appeared to
take official action at odds with the position articulated in
its amicus brief. This situation, discussed in some detail
in the Luftig Letter submitted to the district court,
involved the EPA's handling in 1985 of ferrocyanide wastes
generated at a facility operated by the Mearl corporation.
Mearl had filed a petition before the EPA to exclude its
wastewater treatment sludge from regulation under RCRA. See
dispute BVE's factual assertion.
11. Indeed, the problem of overbreadth is what appears to have prompted commentators to object to the EPA's original inclusion of "cyanide and all cyanide compounds" on the proposed CWA list, and what prompted the change to "cyanides." See 38 Fed. Reg. at 24344. Yet, using the
"total cyanide" test to define "cyanides" as amicus proposes would, in effect, make the category "cyanides" equivalent to the rejected formulation, "all cyanide compounds."
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50 Fed. Reg. 7882, 7888-90 (Feb. 26, 1985). Although a test
for total cyanide indicated positive results, Mearl argued to
the EPA that all cyanide in the waste was "in the insoluble,
non-toxic form of ferric ferrocyanide." 50 Fed. Reg. at
7889. After public hearing and comment, the EPA granted
Mearl's petition to exclude the waste from RCRA regulation,
stating that "the waste does not exhibit any of the
characteristics of hazardous waste." 50 Fed. Reg. 48886,
48890 (Nov. 27, 1985). The EPA further stated that "the
cyanide present [in the sludge, in the form of FFC] will not
convert to free cyanide [in environmental conditions] and
therefore is not of regulatory concern with respect to
ground-water or atmospheric exposure routes." 50 Fed. Reg.
at 48890 (emphasis added).
While technically, the decision to exclude Mearl's
wastewater sludge from RCRA regulation was limited to Mearl's
own facility, and did not directly affect the status of FFC
under the CWA or CERCLA, it is difficult to ignore the EPA's
statement that the FFC in the Mearl sludge was "not of
regulatory concern" because it would not convert to free
cyanide under environmental conditions. Here, too, the
record supports the conclusion that the FFC found at the
Attleboro site may pose no threat of releasing free cyanide
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under normal environmental conditions.12 At a minimum, the
EPA's action with respect to the Mearl petition provides some
support for BVE's position in this litigation.
We conclude that the EPA rules promulgated under the
CWA that identify test procedures for the measurement of
wastewater parameters, including the total cyanide test, do
not set forth an agency definition of "cyanides" for purposes
of the CWA's list of toxic pollutants or CERCLA's list of
hazardous substances. Thus, even assuming that FFC releases
cyanide when subjected to the Standard Methods test for
measuring "total cyanide," it does not follow as a matter of
law that FFC is one of the "cyanides" for purposes of CERCLA
liability.
3. Agency Deference
The varying positions stated in the EPA's amicus
brief and in the Luftig Letter concerning the EPA's purported
12. The Commonwealth's experts (and its counsel at oral argument) have suggested that FFC could degrade and release cyanide gas when exposed to sunlight. BVE's expert has attested to a directly contrary conclusion. Additionally, the Commonwealth's counsel asserted at oral argument that some free cyanide was found at the Attleboro site, suggesting
that the cyanide had dissociated from the FFC under environmental conditions. However, as far as the record discloses, only trace amounts of free cyanide were found at the site, i.e., measuring less than 1 part per million. By
comparison, the generally recognized safety threshold for free cyanide in workroom air is 10 parts per million. For purposes of evaluating the Commonwealth's summary judgment motion, we must assume that FFC does not degrade when exposed to sunlight, and that no more than background levels of free cyanide were detectable at the Attleboro waste site.
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definition of "cyanides" are not entitled to deference under
the principles of Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). It is apparent
that the argument for defining "cyanides" by reference to the
total cyanide test has been tailored to and articulated
specifically for purposes of this particular litigation.13
As such, that position need not be given any special weight.
See Martin v. Occupational Safety & Health Rev. Comm'n, 499
U.S. 144, 156-57 (1991) (agency's litigating position, in the
nature of "post hoc rationalization" rather than the result
of the official exercise of action authority, is entitled to
no Chevron deference); see also Director, Office of Workers'
Compensation Programs, U.S. Dep't of Labor v. General
Dynamics Corp., 980 F.2d 74, 79 (1st Cir. 1992); Brewster v.
Sullivan, 972 F.2d 898, 901 (8th Cir. 1992).
4. Policy Considerations
13. The Luftig Letter, while written by an EPA official, does not set forth an entrenched EPA view. The letter does not articulate a definition as such of the term "cyanides" and is tellingly circumspect in its discussion of the EPA's purported position on whether FFC falls within that category. Instead of stating outright that the EPA adheres to an established definition of "cyanides" that encompasses FFC, it makes only the far weaker statement that "the manner in which EPA addresses cyanides under the Clean Water Act indicates that the term does include ferric ferrocyanide." Furthermore, while the letter says that the EPA uses the total cyanide test described in Standard Methods, it never
states that the EPA has defined "cyanides" by reference to
that test, offering the more limited assertion that "[t]he[se] testing procedures provide confirmation that
ferric ferrocyanide is a 'cyanide' [emphasis added]."
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We are also troubled by the EPA's approach here as a
matter of policy. A complicated regulatory regime like
CERCLA or the CWA cannot function effectively unless citizens
are given fair notice of their obligations. Congress
delegated to the EPA the continuing task of defining which
substances are "hazardous substances" to which CERCLA
liability can attach. The EPA does not argue here that the
term "cyanides" has a plain meaning that would enable a
person to answer the question of whether FFC falls within
that category. Instead, it suggests that the patchwork of
regulations relating to the measurement of effluent
discharges can be adapted to the task at hand. We can thus
determine the status of FFC for CERCLA liability purposes,
says the EPA, by boiling the FFC in concentrated sulfuric
acid. Yet the EPA points to no regulation or other source
except its amicus submission to this court that tells the
public that boiling a substance in concentrated sulfuric acid
is the way to determine whether it legally qualifies as one
of the "cyanides." That is not fair notice to the public and
is not what Congress contemplated when it granted the EPA
power to promulgate regulations to define and supplement
CERCLA's list of hazardous substances.
D. Primary Jurisdiction
Because there exists no basis for concluding as a
matter of law that FFC falls within the scope of the term
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"cyanides," the district court's order granting partial
summary judgment in favor of the Commonwealth must be
vacated. We are left, then, to decide whether the proper
disposition of this appeal is to remand the case to the
district court for trial, or to prescribe some other avenue
for appropriate factfinding with respect to "cyanides" and
FFC. We conclude that the proper course is a referral to the
EPA under the doctrine of primary jurisdiction.
Having found that the term "cyanides" is ambiguous,
that EPA's regulatory framework does not adequately define
the term, that the legislative and regulatory history of the
term "cyanides" does not establish the Commonwealth's
position, and that the position advocated by amicus is not
entitled to deference, we are left with virtually no
legislative or administrative guidance for determining
whether, on the record before us, FFC is one of the
"cyanides." Congress delegated to the EPA, not to the
courts, the authority to administer the CWA toxic pollutant
list and the CERCLA list of hazardous substances. This case
seems clearly to call for referral to the EPA under the
"primary jurisdiction" doctrine, for an appropriate
administrative determination of whether FFC falls within the
category "cyanides." Cf. Chastain v. AT&T Co., 351 F. Supp.
1320, 1323 (D.D.C. 1972) (invoking primary jurisdiction
doctrine and referring case to the relevant agency, where the
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court was "unwilling and unable to assume the initial
responsibility of evaluating the highly technical questions
raised by the parties").
The Supreme Court has stated that "[n]o fixed formula
exists for applying the doctrine of primary jurisdiction."
United States v. Western Pacific Railroad Co., 352 U.S. 59,
64 (1956). Broadly speaking, the doctrine, informed by
principles of deference to agency decisionmaking, gives
effect to the eminently sensible notion that "in cases
raising issues of fact not within the conventional experience
of judges or cases requiring the exercise of administrative
discretion, agencies created by Congress for regulating the
subject matter should not be passed over." Id. (quoting Far
East Conference v. United States, 342 U.S. 570, 574-75
(1952)); see generally II Kenneth C. Davis & Richard J.
Pierce, Jr., Administrative Law Treatise 14.1, at 271-80
(3d ed. 1994). The doctrine is intended to "serve[] as a
means of coordinating administrative and judicial machinery,"
and to "promote uniformity and take advantage of agencies'
special expertise." Mashpee Tribe v. New Seabury Corp., 592
F.2d 575, 580 (1st Cir. 1979).
This court has said that there are three factors that
guide the decision whether or not to defer a matter to an
agency under the primary jurisdiction doctrine:
(1) whether the agency determination l[ies] at the heart of the task assigned the agency
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by Congress; (2) whether agency expertise [i]s required to unravel intricate, technical facts; and (3) whether, though perhaps not determinative, the agency determination would materially aid the court.
Id. at 580-81 (citing Chicago Mercantile Exchange v. Deaktor,
414 U.S. 113, 114-15 (1973)). All three of these factors are
plainly satisfied here. The determination whether FFC is a
hazardous substance is specifically within the scope of the
EPA's delegated authority; the EPA's expertise is required to
sift through and properly weigh all of the arguments for and
against including FFC within the category "cyanides"; and
official rulemaking by the EPA on this issue would
indisputably assist the court in determining BVE's liability
to the Commonwealth under CERCLA.14
The judicial machinery is ill-suited to fashioning a
workable rule for determining whether the substance FFC by
virtue of its chemical, structural, functional, or other
qualities, falls within the properly conceived definition of
"cyanides." That determination is much better left to the
EPA.
14. We acknowledge the general principle that a primary jurisdiction reference to an agency is usually inappropriate in an enforcement action brought by the agency. See ICC v.
B&T Transp. Co., 613 F.2d 1182, 1187 (1st Cir. 1980) (stating
that the primary jurisdiction doctrine does not apply where the agency brings suit, because the agency's position on the matter to be litigated will be clear). This action, however, was brought by the Commonwealth, not by the EPA. As noted above, the EPA's position on the definition of "cyanides" is far from clear.
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Referral to the EPA under the doctrine of primary
jurisdiction will also serve the interest of national
uniformity in regulation. The question of whether FFC is a
CERCLA hazardous substance is of more than local concern. As
noted earlier, FFC is a common byproduct of the gas
manufacturing process that was prevalent in prior decades at
some 1500 different facilities across the country. Moreover,
a determination as to whether FFC is one of the "cyanides"
would undoubtedly have significant implications beyond our
purview for similar substances whose status under CERCLA
currently remains unclear. Rather than leave this matter to
the risk of inconsistent outcomes before particular courts in
different parts of the country, we believe it better to have
the EPA resolve the issue nationwide.15
Accordingly, we conclude that this case should be
referred to the EPA for an administrative determination of
whether FFC is one of the "cyanides" within the meaning of 40
C.F.R. 401.15 and Table 302.4. We further conclude that
the district court proceedings in this case shall be stayed
and that the court shall retain jurisdiction over this case
pending an appropriate determination of the relevant issues
15. The EPA's determination would, of course, be subject to judicial review and thus would not be immune from challenge if arbitrary, unreasonable, clearly contrary to the statute's intended effect, or otherwise unlawful. See ABF Freight
Sys., Inc. v. NLRB, 114 S. Ct. 835, 839 (1994); Brown v.
Secretary of HHS, 46 F.3d 102, 106 (1st Cir. 1995).
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by the EPA.16 See Reiter v. Cooper, 113 S. Ct. 1213, 1220
(1993) (explaining that court has discretion to retain
jurisdiction pending administrative referral or to dismiss
the case without prejudice).
The district court's order granting the motion for
partial summary judgment is vacated. The case is remanded to
the district court for primary jurisdiction reference to the
EPA. The district court shall refer the matter to the EPA to
determine whether FFC qualifies as one of the "cyanides"
within the meaning of 40 C.F.R. 401.15 and 40 C.F.R.
302.4, Table 302.4. No costs are awarded.
16. In so doing, we note that BVE has placed the $5.8 million at stake here in an interest bearing escrow account. The Commonwealth's interests will be protected during the stay. When we asked the Commonwealth at oral argument if any additional protections would be required should the EPA's primary jurisdiction be invoked, the Commonwealth sought nothing further.
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