
USCA1 Opinion

	




          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,                                          v.                         BLACKSTONE VALLEY ELECTRIC COMPANY,                                Defendant, Appellant.                                 ____________________                                     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,                                          v.                         BLACKSTONE VALLEY ELECTRIC COMPANY,                                Defendant, Appellant.                                 ____________________                     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                                         -4-            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,                                         -5-            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.                                         -6-            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.                                         -7-            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.            ___                                         -8-            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.                                         -9-                    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.                                         -10-                    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).                                         -11-            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.                                         -12-            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                                         -13-            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            _______                                         -14-            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                                         -15-            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                                         -16-            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.                                         -17-            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,                                                              ___                                         -18-            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                                         -19-            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                        ____________________________________________                                         -20-                    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                                         -21-            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                                         -22-            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                                         -23-            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                                         -24-            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."                                         -25-            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                                         -26-            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.                                         -27-            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]."                                         -28-                    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                                         -29-            "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                                         -30-            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                                         -31-                    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.                                         -32-                    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).            ________________                                         -33-            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.                                         -34-
