Narragansett Electric Co. v. United States Environmental Protection Agency

United States Court of Appeals
For the First Circuit

No. 04-1127

THE NARRAGANSETT ELECTRIC COMPANY,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

COMMONWEALTH OF MASSACHUSETTS,

Intervenor.

ON PETITION FOR REVIEW OF AN ORDER
OF THE ENVIRONMENTAL PROTECTION AGENCY

Before

Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.

Ernest Gellhorn, Garrett Rasmussen, Jeffrey Wertkin, Law
Office of Ernest Gellhorn, and Patton Boggs LLP on brief for
petitioner.
Laurel A. Bedig, Environmental Defense Section, and Thomas L.
Sansonetti, Assistant Attorney General, Environmental and Natural
Resources Division, United States Department of Justice, on brief
for respondent.
William L. Pardee, Assistant Attorney General, Environmental
Protection Division, and Thomas F. Reilly, Attorney General,
Commonwealth of Massachusetts, on brief for intervenor.

May 6, 2005
 LYNCH, Circuit Judge. The litigation at issue here is an

outgrowth of an earlier action appealed to this court, see

Commonwealth of Mass. v. Blackstone Valley Elec. Co., 67 F.3d 981

(1st Cir. 1995), an environmental case in which we ordered a key

question referred to the United States Environmental Protection

Agency ("EPA") under the primary jurisdiction doctrine. Not liking

the EPA's response, the successor to the defendant in the initial

action filed suit directly in this court, asserting that the courts

of appeals have original jurisdiction under 33 U.S.C. § 1369(b),

which grants direct appellate review of certain actions under the

Clean Water Act ("CWA"). Because we find that direct appellate

review of the precise action here -- an interpretation of an

already listed toxic pollutant in response to a primary

jurisdiction referral -- is not within the scope of section

1369(b), we hold that we lack subject matter jurisdiction. Rather

than dismissing the petition, we transfer it, for efficiency

purposes, to the Federal District Court for the District of

Massachusetts, thus consolidating it with the underlying

environmental litigation that generated the primary jurisdiction

referral. See 28 U.S.C. § 1631.

I.

We briefly describe the facts, beginning with the

underlying litigation. In 1987, the Commonwealth of Massachusetts

sued Blackstone Valley Electric Company ("Blackstone"), the

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corporate predecessor to Narragansett Electric Company

("Narragansett"), the plaintiff in this action, in federal district

court for the District of Massachusetts to recover cleanup and

response costs under the Comprehensive Environmental Response,

Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et

seq. See Blackstone Valley, 67 F.3d at 983-84. The cleanup costs

were for excavation and removal of soil and wood chips contaminated

with the compound ferric ferrocyanide ("FFC"). See id. The FFC

was created as a waste byproduct of a coal-based gas manufacturing

process employed by a gas facility that had been operated by

Blackstone from 1920-1961. See id.

The Commonwealth's ability to recover its cleanup costs

turned essentially on the question of whether FFC was a "hazardous

substance" within the meaning of CERCLA. See id. at 984. CERCLA's

definition of "hazardous substance" incorporated various lists of

substances from other environmental statutes, including the list of

"toxic pollutants" that the EPA Administrator was charged with

promulgating under the CWA, 33 U.S.C. § 1317(a). See 42 U.S.C. §

9601(14)(D). FFC itself is not listed on any of the lists

incorporated by CERCLA. However, the category "cyanides" is

included on the CWA's list of toxic pollutants, as determined by

the EPA Administrator. 40 C.F.R. § 401.15; see also 40 C.F.R. §

302.4 & tbl. 302.4 (incorporating this list into CERCLA).

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 The Commonwealth's argument in the initial litigation was

that the term "cyanides" in the CWA list of toxic pollutants under

33 U.S.C. § 1317(a) included within it the compound FFC. The

district court granted the Commonwealth partial summary judgment on

the issue of whether FFC was a "hazardous substance" under CERCLA,

holding that the term "cyanides," by its "plain meaning," included

the cyanide compound FFC. See Commonwealth of Mass. v. Blackstone

Valley Elec. Co., 777 F. Supp. 1036, 1038-39 (D. Mass. 1991).

On appeal, this court vacated the district court's grant

of partial summary judgment on this issue. We held that there was

no plain meaning whether the term "cyanides" included FFC, given

conflicting expert affidavits on the scientific meaning of the

term. Blackstone Valley, 67 F.3d at 986-87. We noted further that

"[h]aving found . . . 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

[the EPA] is not entitled to deference, we are left with virtually

no legislative or administrative guidance for determining whether"

the term "cyanides" includes FFC. Id. at 991-92. Thus, we ordered

the question referred to the EPA under the primary jurisdiction

doctrine. See id. at 992. Specifically, we remanded the case to

the district court to refer to the EPA the question, for

"administrative determination," of "whether FFC qualifies as one of

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the 'cyanides' within the meaning of 40 C.F.R. § 401.15 and 40

C.F.R. § 302.4, Table 302.4." Id. at 993. The district court

stayed its own proceedings pending this determination.

Eight years later, in 2003, the EPA finally answered the

question in a "final administrative determination" ("FAD"), as

follows: "ferric ferrocyanide . . . is one of the 'cyanides' within

the meaning of the Toxic Pollutant List under the Clean Water Act."

See 68 Fed. Reg. 57,690 (Oct. 6, 2003). In reaching this

conclusion, the EPA undertook both a "legal review" and a

"scientific review." In its legal review, the EPA considered the

legislative history of the CWA's toxic pollutant provision, 33

U.S.C. § 1317(a), the statutory language of this provision, and its

own history of implementing this provision. It acknowledged that

none of these sources specifically addressed FFC or discussed the

scope of the term "cyanides," but found that these three indicators

showed that the listed pollutants under 33 U.S.C. § 1317(a) were

"meant to be broad categories or families of compounds." Further,

the EPA noted that the context of § 1317(a) made a broad reading of

these listed toxic pollutants sensible: "Listing does not impose

any regulatory requirements; rather it establishes how a listed

pollutant may be regulated in effluent limitation guidelines and

national pollutant discharge elimination system . . . permits."1

1
In its legal analysis, the EPA emphasized 40 C.F.R. § 423,
App. A, where the EPA promulgated a list of 126 "Priority
Pollutants." The list included a reference to "Cyanide, Total,"

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In its scientific review, the EPA stated that there was evidence

that FFC can and has released free cyanide in the environment in

ways that could be toxic to humans and aquatic organisms.

"[C]omments from peer reviewers [and] non-EPA experts with

specialized knowledge . . . were generally supportive of EPA's

scientific analysis"; thus this scientific analysis "support[s]"

the EPA's conclusion from its legal review that the term "cyanides"

under 40 C.F.R. § 401.15 includes FFC.

Before promulgating its FAD, the EPA provided notice and

opportunities for public comment, as well as a peer review of its

proposed determination by scientists. See 60 Fed. Reg. at 57,691.

The EPA stressed that in its view, because its FAD was not a

which the EPA stated was intended as a reference to a certain test,
the total cyanide test, for measuring cyanide. The test is
explained under 40 C.F.R. § 136.3, which establishes procedures for
measuring pollutant discharges for permitting and certain other
purposes. Cyanide is apparently detectable from FFC by using this
total cyanide test. At least one other test would not detect
cyanide in FFC, but the EPA found that 40 C.F.R. § 423's reference
to the total cyanide test was useful in interpreting the EPA's
toxic pollutant list at 40 C.F.R. § 401.15, and established that
test as the appropriate test for measuring which compounds were
included in the term "cyanides" on the toxic pollutant list. In
Blackstone Valley, this court declined, despite EPA's suggestion in
an amicus brief, to use the reference to the total cyanide test in
40 C.F.R. § 136.3 in order to itself interpret the listing of toxic
pollutants under the CWA at 40 C.F.R. § 401.15. See 67 F.3d at
988-91. We expressed concern with the lack of any apparent link
between the regulations at § 136.3 and the list at § 401.15, as
well as the potential for the total cyanide test to lead to
nonsensical classifications. See id. at 989-90. Since we transfer
this case for lack of subject matter jurisdiction, we of course do
not discuss the appropriateness of the EPA's use of the "Cyanide,
Total" reference in this context.

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"legislative rule," the agency did not need to provide a notice and

comment period, but had provided one solely out of choice. See id.

The EPA also emphasized its view that:

EPA's [FAD] . . . clarifies the Agency's
interpretation of the term 'cyanides' and does
not impose new requirements. It does not mean
that [FFC] is a newly added pollutant to the
toxic pollutant list under [33 U.S.C.
1317(a)]. The FAD is not a regulation nor
does it change existing regulations under the
CWA or CERCLA.

Unhappy with the EPA's FAD, which obviously meant it was

more vulnerable to having to pay CERCLA clean-up costs to the

Commonwealth, Narragansett (the corporate successor to Blackstone)

filed a petition for review under 33 U.S.C. § 1369(b) of the EPA's

FAD in this court, on January 22, 2004.

Before us, Narragansett seeks a determination that the

EPA's FAD constituted a "legislative rule" adopted without

complying with the strictures of the Administrative Procedure Act

("APA"), and thus is void. Meanwhile, the Federal District Court

for the District of Massachusetts continues to have jurisdiction

over the initial, underlying case in which the Commonwealth sued

Narragansett for cleanup costs, because it was the court that

originally referred the question to the EPA under the primary

jurisdiction doctrine. As best we can tell, no substantive action

has taken place in that court due to the pendency of this action.

The EPA has sought to dismiss the court of appeals review

petition for lack of subject matter jurisdiction, arguing that we

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do not have original jurisdiction over this action under 33 U.S.C.

§ 1369(b) and that any jurisdiction is instead vested in the

district court under the general provisions of the APA.

Narragansett opposes this motion. The Commonwealth has intervened

and, while taking no position on the jurisdiction question in the

court of appeals, argues that if we find that we have no

jurisdiction over this case, we ought to transfer the action to the

district court hearing the initial case between the Commonwealth

and Narragansett, rather than dismissing it entirely, so as to

facilitate efficient resolution of the underlying CERCLA claim.

Narragansett opposes this as well.

II.

The relevant jurisdictional provision at issue, 33 U.S.C.

§ 1369(b), provides for direct federal court of appeals review of

certain actions of the EPA Administrator under the CWA.2 Among the

2
The statute reads as follows:
Review of the Administrator's action (A) in promulgating
any standard of performance under [33 U.S.C. § 1316], (B)
in making any determination pursuant to [33 U.S.C.
1316(b)(1)(C)], (C) in promulgating any effluent
standard, prohibition, or pretreatment standard under [33
U.S.C. § 1317], (D) in making any determination as to a
State permit program submitted under [33 U.S.C. §
1342(b)], (E) in approving or promulgating any effluent
limitation or other limitation under [33 U.S.C. §§ 1311,
1312, 1316, or 1345], (F) in issuing or denying any
permit under [33 U.S.C. § 1342], and (G) in promulgating
any individual control strategy under [33 U.S.C. §
1314(l)], may be had by any interested person in the
Circuit Court of Appeals of the United States for the
Federal judicial district in which such person resides or
transacts business . . . ."

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EPA Administrator's actions under the CWA which are directly

reviewable in the courts of appeals are the promulgation of "any

effluent standard, prohibition, or pretreatment standard under [33

U.S.C. § 1317]." 33 U.S.C. § 1369(b)(1)(C).3

Direct appellate review in the courts of appeals under

section 1369 carries with it "a peculiar sting" for potential

challengers: any agency action reviewable under its provisions must

be challenged within 120 days, unless based on new "grounds"

arising after the expiration of that time frame, and cannot

thereafter be challenged in any "civil or criminal proceeding for

enforcement." 33 U.S.C. § 1369(b); see Longview Fibre Co. v.

Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992); Am. Paper Inst.,

Inc. v. EPA, 882 F.2d 287, 288-89 (7th Cir. 1989). The short time

33 U.S.C. § 1369(b)(1).
3
We quickly deal with one issue. One might think that when a
primary jurisdiction referral originates in a certain district
court, any challenge to the fruits of that referral by a party to
the underlying litigation must be in that same court, and the
challenger is precluded from bringing a challenge in some other
court. This, though, is not the law. See, e.g., Port of Boston
Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S.
62, 68-69 (1970) (where statute gives court of appeals exclusive
jurisdiction over an agency action, district court which referred
question to agency under primary jurisdiction question properly
held that it lacked jurisdiction to review the answer to that
question); Ass'n of Int'l Automobile Mfrs., Inc. v. Comm'r, Mass.
Dep't of Envtl. Prot., 196 F.3d 302, 304 (1st Cir. 1999) (noting
that judicial review of question referred for primary jurisdiction
can occur in a different court); see also 28 U.S.C. § 1336(b)
(imposing special statutory requirement that court referring a
question to Surface Transportation Board under primary jurisdiction
doctrine has exclusive jurisdiction over response).

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frame in § 1369(b) clearly reflects some effort to protect the

EPA's interests in finality in certain matters, particularly

certain rulemakings with substantial significance and scope. By

contrast, the standard statute of limitations for APA actions is

six years. See Trafalgar Capital Assocs., Inc. v. Cuomo, 159 F.3d

21, 34 (1st Cir. 1998). Further, we note the obvious proposition,

stated by various courts, that since some but not all of the

actions that the EPA can take under the CWA are listed with

considerable specificity in section 1369(b), not all EPA actions

taken under the CWA are directly reviewable in the courts of

appeals. See, e.g., Friends of the Earth v. EPA, 333 F.3d 184,

189-90 (D.C. Cir. 2003); Bethlehem Steel Corp. v. EPA, 538 F.2d

513, 518 (2d Cir. 1976).

Narragansett acknowledges, as it must, that the FAD

issued by the EPA in this case is not specifically set forth in

section 1369(b). Nonetheless, it argues that we have original

jurisdiction under section 1369(b)(1)(C), which gives this court

original jurisdiction to hear challenges to the EPA's promulgation

of any effluent standard or prohibition promulgated under 33 U.S.C.

§ 1317. See 33 U.S.C. § 1369(b)(1)(C). It is clear that the FAD

itself did not promulgate any effluent standard or prohibition.

Effluent standards and prohibitions are quantity limits or

prohibitions of discharges of toxic pollutants that apply to all

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industries and types of point sources. See 40 C.F.R. § 129.2; 33

U.S.C. § 1362(11).

However, Narragansett contends that even though the EPA

labeled its own action as merely an interpretation of an existing

listing of the category "cyanides," the EPA's action should be

considered as equivalent to a "listing" of FFC as a "toxic

pollutant" under 33 U.S.C. § 1317(a)(1). Further, Narragansett

argues that because a listing of a compound as a toxic pollutant

under section 1317(a)(1) is a precondition for the promulgation of

effluent standards or prohibitions dealing with the listed

substance under section 1317(a)(2), and is so intertwined with such

a promulgation, the listing itself must be directly reviewable in

the courts of appeals under 33 U.S.C. § 1369(b)(1)(C).

Narragansett cites Natural Resources Defense Council, Inc. v.

Train, 519 F.2d 287, 290-91 (D.C. Cir. 1975), for this latter

proposition,4 and also notes that the statutory factors that the

EPA should consider when promulgating a "listing" are virtually

4
Natural Resources held that the challenge at issue before it,
which went to the exclusion of certain pollutants from the toxic
pollutant list, was not intertwined with the promulgation of any
effluent standards, and thus jurisdiction lay in the district court
under general provisions of the APA, and not in the appeals court
under section 1369. 519 F.2d at 291. However, Natural Resources
stated, in dicta, that "when the Administrator has listed a
substance and thereafter promulgated standards or prohibitions for
that substance the listing and the promulgation of standards are
interwoven; any challenge to the Administrator's action must then
be in a court of appeals under section [1369]." Id. at 290-91.
That is not this case, since here no effluent standards have yet
been promulgated dealing with cyanides or FFC.

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identical to those used when subsequently considering an effluent

standard or prohibition for that listed substance. See 33 U.S.C.

§ 1317(a)(1), (2). From a policy perspective, Narragansett notes

the potential for irrational bifurcated review if a company,

seeking to challenge both specific effluent standards dealing with

a toxic pollutant and the underlying listing of that substance as

a toxic pollutant, were forced to file in two different courts to

make those challenges.

The EPA counters that a listing is not so intertwined

with a subsequent effluent standard or prohibition as to require

initial review in the courts of appeals. It notes that Natural

Resources predates revisions to section 1317 that loosened the

relationship between listings and effluent standards. See 33

U.S.C. § 1317, Historical and Statutory Notes. As well, it notes

that the EPA need not automatically subject a substance to effluent

standards or prohibitions merely because it has been listed as a

toxic pollutant; in fact, the EPA has only promulgated effluent

standards for a few listed toxic pollutants under section 1317, and

no effluent standards or prohibitions have been promulgated for

cyanides or FFC. See 40 C.F.R. § 129.4 (listing effluent standards

for only six toxic pollutants).

We have no need to enter into this fray. We do not here

discuss the issue of when, if ever, a listing of a substance as a

"toxic pollutant" under section 1317(a) might be directly reviewed

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in the court of appeals under section 1369(b).5 Nor must we decide

whether an EPA action labeled an "interpretation" of an existing

listing can ever be considered the equivalent of a "listing" for

any purpose. Our grounds of decision in this case are narrower: we

hold only that, as the EPA argues in the alternative, the FAD

issued by the EPA in this case was not equivalent to a "listing"

under section 1317(a).

Before listing a substance as a toxic pollutant under the

CWA, the EPA is statutorily charged with considering the following

factors: 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." 33 U.S.C. § 1317(a)(1). In contrast, the

question the district court referred to the EPA under the primary

jurisdiction doctrine, and which was answered by the EPA, asked

"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."

Blackstone Valley, 67 F.3d at 993. The inquiry undertaken by the

5
We do note, though, that the challenge Narragansett raises to
this FAD has nothing to do with the promulgation of future effluent
standards or prohibitions dealing with FFC or other cyanides. It
challenges the EPA's determination that FFC was already included on
the list of toxic pollutants for its own sake, as the mere act of
listing a substance as a toxic pollutant under 33 U.S.C. § 1317(a)
leads to potential liability under CERCLA, and avoiding CERCLA
liability is the purpose of Narragansett's suit.

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EPA in order to answer this question emphasized legal

considerations, particularly the legislative history, statutory

language, statutory context, and a review of the various

regulations the EPA has promulgated under the CWA. Scientific

considerations were used only to "support" this analysis, and the

EPA's scientific review did not include a consideration of the

statutory factors in section 1317(a). It considered only whether

cyanide might escape from FFC.

Further, we note that procedurally, it seems clear that

a normal listing of a substance as a toxic pollutant under section

1317(a) is a rule making, and the various procedural requirements

of a rule making, including a notice and comment period, will apply.

See 5 U.S.C. § 553. It is more doubtful that the sort of agency

action at issue in this case -- a FAD in response to a primary

jurisdiction referral about the meaning of a regulation --

constitutes a rule making, and so it may be that various procedural

requirements for a listing, including a notice and comment period,

do not apply as of right, although the EPA chose to provide some of

those procedures here. This is an issue that goes, as well, to the

merits of Narragansett's case against the EPA.

To salvage its argument that this FAD promulgated by the

EPA is a listing, and the listing in turn should be directly

reviewable under section 1369(b) by the courts of appeals,

Narragansett points to Crown Simpson Pulp Co. v. Costle, 445 U.S.

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193 (1980). Crown Simpson offers no support. It held merely that

the EPA's decision to veto a state-issued permit under the CWA was

directly reviewable by the courts of appeals under section

1369(b)(1)(F), which gave the appellate courts jurisdiction over the

EPA's actions in "issuing or denying any permit" under a certain CWA

provision, because the "precise effect of [the EPA's] action [was]

to 'deny' a permit," and its action was "functionally similar" to

a direct denial of an EPA permit. See id. at 196. Here, as stated

above, the FAD issued by the EPA has a different effect than, and

is not functionally similar to, a listing (to not even speak of an

"effluent standard," the actual statutory language at issue).6

Since the FAD issued by the EPA here is not functionally

equivalent to a listing, Narragansett's argument necessarily fails.

The interrelationship between the FAD and an "effluent standard"

cannot be sufficient to establish jurisdiction under 33 U.S.C. §

6
Narragansett also relies on Modine Manufacturing Corp. v.
Kay, 791 F.2d 267 (3d Cir. 1986), which held that within the
context of that case, an EPA interpretation of a "pretreatment
standard" to apply it to a certain type of industrial process was
reviewable under section 1369(b) just as the EPA's promulgation of
a pretreatment standard itself would be. While we do not
necessarily agree with the result in Modine, which reflected a
"liberal" interpretation of section 1369, see id. at 269-70, that
has not been followed in other cases, we find Modine easily
distinguishable for several reasons. The interpretation in that
case was not conducted pursuant to a very limited referral under
the primary jurisdiction doctrine, but instead was performed
pursuant to certain formalized agency procedures. Further, the
"interpretation" here is of a listing, not of an effluent standard;
thus the interpretation is an additional step removed from an
action named as reviewable in the statutory text.

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1369(b)(1)(C). Narragansett makes no arguments under any of the

other clauses in section 1369(b). Thus, we lack original

jurisdiction to hear this petition. Original jurisdiction over this

petition would seem to lie in the district court under the APA.

Arguments such as whether the FAD was a final agency action

reviewable under the APA, see 5 U.S.C. § 704, should be addressed

by the district court.

The Commonwealth, as an intervenor, asks that we not

dismiss this petition, thus allowing it to be refiled in any

district court, but rather that we transfer the petition, construed

as an APA petition, to the district court currently hearing the

initial, underlying litigation between the Commonwealth and

Narragansett. The Commonwealth argues that this will allow both

cases to be determined at the same time, preventing undue delay of

the underlying action, which began in 1987. 28 U.S.C. § 1631 allows

us to transfer a case over which we lack jurisdiction to any other

court where the action originally could have been brought, so long

as such a transfer is in the "interest of justice." See Britell v.

United States, 318 F.3d 70, 73-74 (1st Cir. 2003).

Transfer here is plainly in the interest of justice:

Narragansett has made no argument that it will be harmed by the

transfer or would prefer a different forum for any reason. Further,

a District of Massachusetts forum coincides well with Narragansett's

filing of this petition with the First Circuit. Both the

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Commonwealth's interests and interests in "judicial administration"

-- which is a factor in the section 1631 analysis, see id. at 75 --

counsel very strongly in favor of a transfer. Narragansett argues

that section 1631 is intended solely to protect the interests of the

filing plaintiff and thus transfer cannot be granted over the filing

party's objections. Such a narrow read of the statute is

inconsistent with its language, with Britell, and with the fact that

a court can sua sponte order a transfer even absent a motion from

either party, see, e.g., Phillips v. Seiter, 173 F.3d 609, 610 (7th

Cir. 1999), and we do not adopt it. We will grant the transfer

here.

If and when the district court does resolve the FFC issue

in light of the FAD, any party remains free to request review

immediately in this court under the certification procedure if there

is a basis for believing that immediate review would be appropriate.

We are not endorsing such a course but merely noting its existence.

III.

We hold that we lack jurisdiction over this petition

under 33 U.S.C. § 1369(b). The Commonwealth's motion to transfer

is granted, and this case is hereby transferred to the United States

District Court for the District of Massachusetts. The Clerk of this

court is directed to take the necessary steps to effectuate the

transfer. No costs are awarded.

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