Com. of Mass. v. Blackstone Valley Elec. Co.

• Decision Date: 03 August 1995
• Docket Number: No. 94-2286,94-2286
• Citation: 67 F.3d 981
• Parties: , 64 USLW 2303 COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee, v. BLACKSTONE VALLEY ELECTRIC COMPANY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 981

67 F.3d 981

41 ERC 1555, 64 USLW 2303

COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee, v. BLACKSTONE VALLEY ELECTRIC COMPANY, Defendant, Appellant.

No. 94-2286.

United States Court of Appeals, First Circuit.

Heard Aug. 3, 1995.

Decided Oct. 6, 1995.

John Voorhees, Boulder, CO, with whom David F. Goossen, Isaacson, Rosenbaum, Woods & Levy, P.C., Denver, CO, David A. Fazzone, P.C., and McDermott, Will & Emery, Boston, Mass., were on brief, for appellant.

Karen McGuire, Assistant Attorney General of Massachusetts, with whom Scott Harshbarger, Attorney General of Massachusetts, Boston, Mass., 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, Washington, DC, were on brief, for the United States as amicus curiae.

Before CYR, BOUDIN, and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

The Commonwealth of 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 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, 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

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. Secs. 9604, 9607; see generally Dedham Water Co. v. Cumberland Farms 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. Sec. 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. Sec. 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. Sec. 9602(a). The EPA has codified a consolidated list of hazardous substances subsuming all of the statutory lists incorporated by CERCLA, at 40 C.F.R. Sec. 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. Sec. 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, Sec. 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. Sec. 1317(a), published by the EPA, see 43 Fed.Reg. 4108-09 (Jan. 31, 1978), and codified, see 40 C.F.R. Sec. 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

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-a-vis the CERCLA/CWA category of "cyanides." The Commonwealth provided this letter to the district court as additional support for its motion.

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...