

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 &amp;  Levy, P.C.,  David A.  Fazzone, P.C.,  and McDermott, Will  &amp;                                                                              
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 &amp;  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 &amp; 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 &amp; 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&amp;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  &amp; 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&amp;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-
