# United States Court of Appeals For the First C ircuit

No. 04-1127 THE NARRAGANSETT ELECTRIC COMPANY, Petitioner,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. COMMONWEALTH OF MASSACHUSETTS,

Intervenor.

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

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

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

May 6, 2005-2- LYNCH, Circuit Judge . The litigation at issue here is an outgro wth of an earlier action appealed to this court, see Commonwealth of Mass. v. Blackstone Valley Elec. Co. , 67 F.3d 981 (1st Cir. 1995), an e nvironmental case in which we ordered a key question referred to the United States Environmental Protection Agency("EPA") under the primary jurisdiction doctrine. Not liking the EPA's response, the successor to the defendant in the initial action filed suit directly in this court, asserting that the courts of ap peals have original jurisdiction under 33 U.S.C. § 1369(b ) , which grants direct appellate review of certain actions under the Clean Water Act ("CWA"). Because we find that direct appellate reviewof the precise action here -- an interpretation of an alreadylisted toxic pollutant in response to a primary jurisdiction referral -- is not within the scope of section 1369(b), we hold that we lack subject matter jurisdiction. Rather than dis missing the petition, we transfer it, for efficiency purposes, to the Federal District Court for the District of Massachusetts, thus consolidating it with the underlying environmental litigation that generated the primary jurisdiction referral. See 28 U.S.C. § 1631. I. We briefly describe the facts, beginn ing wi th the underlyinglitigation. In 1987, the Commonwealth of Massachusetts suedBlackstone Valley Electric Company ("Blackstone"), the-3-

corporate predecessor to Narragansett Electric Company ("Narragansett"), the plaintiff in this action, in federal district court for the District of Massachusetts to recover cleanup and response costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9 601 et seq. See Blackstone Valley , 67 F.3d at 983-84. The cleanup costs

were for excavation and removal of soil and wood chips contaminated with the compound ferric f erroc yanide ("FFC"). See id. The FFC

was created as a waste byproduct of a coal-based gas manufacturing process employed by a gas facility that had been operated by Blackstone from 1920-1961. See id.

The Commonwealth's ability to recover its cleanup costs turnedessentially on the question of whether FFC was a "hazardous substance" within the meaning of CERCLA. See id. at 984. CERCLA's definition of "hazardous substance" incorporated various lists of substances from other environmental statutes, including the list of "toxic pollutants" that the EPA Administrator was char ged with promulgating under the CWA, 33 U.S.C. § 1317(a). See 42 U.S.C. § 9601(14)(D). FFC itself is no t listed on any of the lists incorp orat edby CERCLA. However, the category "cyanides" is includedon the CWA's list of toxic pollutants, as determined by the EPA Administrator. 40 C.F.R. § 401.15; see also 40 C.F.R. § 302.4 & tbl. 302.4 (incorporating this list into CERCLA).-4- The Commonwealth's argument in the initial litigation was that the term "cyanides" in the CWA list of toxic pollutants under 33 U.S.C. § 1317(a) included within it the compound FFC. The district court granted the Commonwealth partial summary judgment on the issue of whether FFC was a "hazardous substance" under CERCLA, holding that the term "cyanides," by its "plain meaning," included the cyanide compound FFC. See Commonwealth of Mass. v. Blackstone Valley Elec. Co. , 777 F. Supp. 1036, 1038-39 (D. Mass. 1991).

On appeal, this court vacatedthe district court's grant of partial summary judgment on this issue. We held that there was

no plain meaning whether the term "cyanides" included FFC, given conflictingexpert affidavits on the s cien tific meaning of the term. Blackstone Valley , 67 F.3d at 986-87. We noted further that "[h]aving found . . . that EPA's regulatory framework does not adequatelydefine the term, that the legislative and regulatory historyof the term 'cyanides' does not establish the Commonwealth's position, and that the position advocated by amicus [the EPA] is not entitled to deference, we are left with virtually

no legislative or administrative guidance for determining whether" the term "cyanides" includes FFC. Id. at 991-92. Thus, we ordered the question ref err ed to the EPA under the primary jurisdiction doctrine. See id. at 992. Specifically, we remanded the case to the district court to refer to the EPA the question, for "administrative determination," of "whether FFC qualifies as one of1 In its legal an alys is, the EPA emphasized 40 C.F.R. § 423,

App. A, where the EPA promulgated a list of 126 "Priority Pollutants." The list include d a re ference to "Cyanide, Total," -5- the 'cyanides' within the meaning of 40 C.F. R. § 401.15 and 40 C.F.R. § 302.4, Table 302.4." Id. at 993. The district court stayed its own proceedings pending this determination.

Eight years later, in 2003, the EPA finally answered the question in a "final adminis trati ve determination" ("FAD"), as follows: "ferric ferrocyanide . . . is one of the 'cyanides' within the meaningof the Toxic Pollutant List under the Clean Water Act." See 68 Fed. Reg. 57,690 (Oct. 6, 2003). In re aching this conclusion, the EPA undertook both a "lega l r eview" and a "scientific review." In its legal review, the EPA considered the legislative history of t he C WA's toxic pollutant provision, 33 U.S.C. § 1317(a), the statutory language of this provision, and its own history of implementing this provision. It acknowledged that none of these sources specifically addressed FFC or discussed the scope of the term "cyanides," but found that these three indicators showedthat the listed pollutants under 33 U.S.C. § 1317(a) were "meant to be broad categories or families of compounds." Further, the EPA noted that the context of § 1317(a) made a broad reading of these listed toxic polluta nts sensible: "Listing does not impose anyregulatory requirements; rather it establishes how a listed pollut ant may be regulated in effluent limitation guidelines and national pollutant discharge eli mination system . . . permits." 1which the EPA stated was intended as a reference to a certain test,

the total cyanide test, for measuring cyanide. The test is explainedunder 40 C.F.R. § 136.3, which establishes procedures for measuring pollutant discharges for permitting and certain other purposes. Cyanide is apparently detectable from FFC by using this total cyanide test . At lea st one other test would not detect cyanide in FFC, but the EPA found that 40 C.F.R. § 423's reference to the total cyanide test was useful in interpreting the EPA's toxic pollutant list at 40 C.F.R. § 401.15, and established that test as the appropriate test for measuring wh ich compounds were inclu dedi n the term "cyanides" on the toxic pollutant list. In Blackstone Valley , this court declined, despite EPA's suggestion in an amicus brief, to use the reference to the total cyanide test in 40 C.F.R. § 136.3 in order to itself interpret the listing of toxic pollutants un der the CWA at 40 C.F.R. § 401.15. See 67 F.3d at 988-91. We expressed concer n wit h the lack of any apparent link between the regulations at § 136.3 and the list at § 401.15, as well as the potential for the total cy anide te st to lead to nonsensical classifications. See id. at 989-90. Since we transfer this case for lackof subject matter jurisdiction, we of course do not discuss the appropriateness of the EPA's use of the "Cyanide, Total" reference in this context. -6- In its scientific review, the EPA stated that there was evidence that FFC can and has r eleas ed free cyanide in the environment in

wa ys that could be toxic to humans and aquatic organism s . "[C]omments from peer reviewers [and] non-EPA experts with specializedknowledge . . . were generally supportive of EPA's scientific analysis"; thus this scientific analysis "support[s]" the EPA's conclusion from its legal review that the term "cyanides" under 40 C.F.R. § 401.15 includes FFC.

Before promulgating its FAD, the EPA provided notice and opportunities for public comment, as well as a peer review of its proposeddetermination by scientists. See 60 Fed. Reg. at 57,691. The EPA stressed that in its view, because its FAD was not a-7-

"legislative rule," the agencydidnot need to provide a notice and comment period, but had provided one solely out of choice. See id. The EPA also emphasized its view that:

EP A's [F AD] . . . clarifies the Agency's interpretation of the term 'cyanides' and does not impose new requirements. It does not mean that [FFC] is a newly addedpol lutant to the toxic pollutant list under [33 U.S.C. 1317(a)]. The FAD is not a regul atio n nor does it change existing regulations under the CWA or CERCLA. Unhappywith the EPA's FAD, which obviously meant it was

more vulnerable to having to pay CERCLA clean-up costs to the Commonwealth, Narragansett (the corporate successor to Blackstone) fileda petition for review under 33 U.S.C. § 1369(b) of the EPA's FAD in this court, on January 22, 2004.

Before us, Na rrag ansett seeks a determination that the EPA's FAD constituted a "legislative rule" adopted without complying with the strictures of the Administrative Procedure Act ("APA"), and thus is void. Meanwhile, the Federal District Court for the Dis tric t of Massachusetts continues to have jurisdiction

over the initial, underlying case in wh ich the Commonwealth sued Narragansett for cleanup costs, because it was the cou rt tha t originallyreferred the questi on to the EPA under the primary jurisdiction doctrine. As best we can tell, no substantive action has taken place in that court due to the pendency of this action.

The EPA has sought to dismiss the court of appeals review petition for lack of subject matter jurisdiction, arguing that we2 The statute reads as follows:

Reviewof the Administrator's action (A) in promulgating anystandard of performance under [33 U.S.C. § 1316], (B) in making any determinati on pur suant to [33 U.S.C. 1316(b)(1)(C)], (C) in promulgating any effluent standard, prohibition, or pretreatment standard under [33 U.S.C. § 1317], (D) in making any determination as to a State permit progra m s ubmitted under [33 U.S.C. § 1342(b)], (E) in approving or promulgating any effluent limitation or other limitation under [33 U.S.C. §§ 1311, 1312, 1316, or 1345], (F) in issuing or denying any permit under [33 U.S.C. § 1342], and (G) in promulgating anyindividual control strategy under [33 U. S.C. § 1314(l)], may be had by any interested person in the Circuit Court of Appeals of the United Sta tes for the Federal judicial district in which such person resides or transacts business . . . ." -8- do not have original jurisdiction over this action under 33 U.S.C. § 1369(b) and that any jurisdiction is instead vested in the district court under the general provisions of the APA. Narragansett opposes this motion. The Commonwealth has intervened and, while taking no position on the jurisdiction question in the court of appeals, argues that if we find that we have n o jurisdiction over this case, we ought to transfer the action to the district court hearing the ini tial case between the Commonwealth andNarragansett, rather than dismissing it entirely, so as to facilitate efficient resolution of the underlying CERCLA claim. Narragansett opposes this as well. II. The relevant jurisdictional provision at issue, 33 U.S.C. § 1369(b), provides for direct federal court of appeals review of certain actions of the EPA Administrator under the CWA. 2 Among the33 U.S.C. § 1369(b)(1).

3 We quickly deal with one issue. One might think that when a prim aryj urisdiction referral originates in a certain district court, any challenge to the fruits of that referral by a party to the underlying litigation must be in that same court, and the ch allenger is precluded from bringing a challenge in some oth e r court. This, though, is n ot the l aw. See, e.g. , Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic , 400 U.S. 62, 68-69 (1970) (where statute gives court of a ppeals exclusive jurisdiction over an agency action, district court which referred question to agency under prim a ry jurisdiction question properly heldthat it lacked jurisdiction to review the answer to that question); Ass'n of Int'l Automobile Mfrs., Inc. v. Comm'r, Mass. Dep't o f Env tl. Prot. , 196 F.3d 302, 304 (1st Cir. 1999) (noting that judicial reviewof question referred for primary jurisdiction can oc cur in a different court); see also 28 U.S.C. § 1336(b) (imposing spec ial s tatutory requirement that court referring a question to Surface Transportation Board under primary jurisdiction doctrine has exclusive jurisdiction over response). -9- EPAAdministrator's acti ons under the CWA which are directly reviewable in the courts of appeals are the promulgation of "any effluent standard, prohibition, or pretreatment standard under [33 U.S.C. § 1317]." 33 U.S.C. § 1369(b)(1)(C). 3

Direct appellate review in the cou rts of appeals under section 1369 carries with it "a peculi ar sting" for potential challengers: any agency action reviewable under its provisions must be challenged with in 120 days, unless based on new "grounds" arising after the expiration of that time frame, and cannot thereafter be challenged in any "civil or criminal proceeding for enforcement." 33 U.S.C. § 1369(b); see Longview Fibre Co. v. Rasmussen , 980 F.2d 1307, 1313 (9th Cir. 1992); Am. Paper Inst., Inc. v. EPA , 882 F.2d 287, 288-89 (7th Cir. 1989). The short time-10-

frame in § 1369(b) clearly reflects some effort to protect the E PA's interests in finality in certain matters, partic ularl y certain rulemakings with substantial signifi canc e and scope. By

co ntrast , the standard statute of limitations for APA actions is six years. See Trafalgar Capital Assocs., Inc. v. Cuomo , 159 F.3d 21, 34 (1st Cir. 1998). Further, we note the obvious proposition, statedby various courts, that since some bu t n ot all of the actio ns that the EPA can take under the CWA are listed with considerable specificity in section 1369(b), not all EPA actions taken under the CWA are directly reviewable in the courts of appeals. See, e.g. , Friends of the Earth v. EPA , 333 F.3d 184, 189-90 (D.C. Cir. 2003); Bethlehem Steel Corp. v. EPA , 538 F.2d 513, 518 (2d Cir. 1976).

Narragansett acknowledges, as it mu st, that the FAD issuedby the EPA in this case is not specifically set forth in section 1369(b). Nonetheless, it argues that we have original jurisdiction under section 1369( b)(1 )(C), which gives this court original jurisdiction to hear challenges to the EPA's promulgation of any effluent standard or prohibition promulgated under 33 U.S.C. § 1317. See 33 U.S.C. § 1369(b)(1)(C). It is clear that the FAD itself did not promulgate any effluent standard or prohibition. Effluent standards and prohibitions are quantity limits or prohibitions of discharges of toxic pollut ants that apply to all4 Natural Resources held that the challenge at issue before it,

which went to the exclusion of certain pollutants from the toxic pollutant list, was not intertwined with the pro mulgat ion of any effluent standards, and thus jurisdiction lay in the district court under general provisions of the APA, and not in the appeals court under section 1369. 519 F.2d at 291. However, Natural Resources stated, in dicta , that "when the Administrator has listed a substance and thereafter promulgated standards or prohibitions for that substance the listing and the promulgation of stand ards are interwoven; any challenge to the Administrator's action must then be in a court of appeals under section [1369]." Id. at 290-91. That is not this case, since here no effluent stand ards have yet been promulgated dealing with cyanides or FFC. -11- industries and types of point sources. See 40 C.F.R. § 129.2; 33 U.S.C. § 1362(11).

However, Narragansett contends that even though the EPA labeled its own action as merely an interpretation of an existing listing of the category "cyanides," the EPA's action should be consideredas equivalent to a "listing" of FFC as a "toxic pollutant" under 33 U.S.C. § 1317(a)(1). Further, Narragansett argues that because a list ing o f a compound as a toxic pollutant under section 1317(a)(1) is a precondition for the promulgation of effluent standards or prohibitions dealing with the listed substance under section 1317(a)(2), and is so intertwined with such a promulgation, the listing itself must be directly reviewable in the courts of appe als under 33 U.S.C. § 1369(b)(1)(C). Narragansett cites Natural Resources D efense Council, Inc. v. Train , 519 F.2d 287, 290-91 (D.C. Cir. 1975), for this latter propositio n, 4 and also notes that the statutory factors that the EPAshould consider when promulgating a "listing" are virtually-12-

identical to those used when subsequently considering an effluent standard or prohibition for that listed substance. See 33 U.S.C. § 1317(a)(1), (2). From a policy perspective, Narragansett notes th e po tential for irrational bifurcated review if a company, seeking to challenge both specific effluent standards dealing with a toxic pollutant and the underlying listing of that substance as a toxic pollutant, were forced to file in two different courts to make those challenges.

The EPA counters that a lis ting is not so intertwined with a subse quent effluent standard or prohibition as to require initial review in the courts of appeals. It notes that Natural Resources predates revisions to sectio n 13 17 that loosened the relationship between listings and effluent standards. See 33 U.S.C. § 1317, Historical and Statutory Notes. As well, it notes that the EPA need not automatically subject a substance to effluent standards or prohibitions merely because it has been listed as a toxic pollutant; in fact, the EPA has onlypr omulgated effluent standards for a few listed toxic pollutants under section 1317, and

no effluent standards or prohibitions have been promulgated for cyanides or FFC. See 40 C.F.R. § 129.4 (listing effluent standards for only six toxic pollutants).

We have no need to enter into this fray. We do not here discuss the issue of when, if ever, a listing of a substance as a "toxic pollutant" under section 1317(a) might be directly reviewed5 We do note, though, that the challenge Narragansett raises to

this FAD has nothing to do with the promulgation of future effluent standards or prohibitions dealing with FFC or other cyanides. It challenges the EPA's determination that FFC was alreadyincluded on the list of toxic pollutants for its own sake, as the mere act of listing a substance as a toxic pollutant under 33 U.S.C. § 1317(a) le ads to potential liability under CERCLA, and avoiding CER CL A liability is the purpose of Narragansett's suit. -13- in the court of appeals under section 1369(b). 5 Nor must we decide whether an EPA action labele d an "interpretation" of an existing listing can ever be considered the equivalent of a "listing" for anypurpose. Our grounds of decision in this case are narrower: we h oldonly that, as the EPA argues in the alternative, the FAD issuedby the EPA in this case was not equivalent to a "listing" under section 1317(a).

Before listing a substance as a toxic pollutant under the CWA, the EPA is statutorilycharged with considering the following factors: the " toxi city of the pollutant, its persistence, degradabil ity, the usual or potential presence of the affected organisms in any waters, the importance of the affected organisms, and the nature and extent of the effect of the toxic pollutant on such organisms." 33 U.S.C. § 1317(a)(1). In contrast, the question the district court referred to the EPA under the primary jurisdiction doct rin e, and which was answered by the EPA, asked "whether FFC qualifies as one of the 'cyanides' within the meaning of 40 C.F.R. § 401.15 and 40 C.F.R. § 302.4, T ab le 302.4." Blackstone Valley , 67 F.3d at 993. The inquiry undertaken by the-14-

EPAin order to answer this question emphasized legal considerations, particularly the legislative history, statutory language, statutory context, anda review of the various regulations the EPA has promulgated under the CWA. Scientific considerations were used only to "support" this analysis, and the EPA's scientific review did not include a consideration of the statutory factors in section 1317(a). It considered only whether cyanide might escape from FFC.

Further, we note that procedurally, it seems clear that

a normal listing of a substance as a toxic pollutant under section 13 17 (a) is a rule making, and the various procedural requirements of a rule making, including a notice and comment period, will apply. See 5 U.S.C. § 553. It is more doubtful that the sort of agency actio n at issue in this case -- a FAD in response to a p rimar y juri sd iction referral about the meaning of a regulation -- constitutes a rule making, and so it may be that various procedural requirements for a listing, includinga notice and comment period, do not apply as of right, although the EPA chose to provide some of those procedures here. This is an issue that goes, as well, to the merits of Narragansett's case against the EPA.

To salvage its argument that this FAD promulgated by the EPAis a listing, and the listing in turn sh ould be directly reviewable under section 1369(b) b y the courts of appeals, Narragansett points to Crown Simpson Pulp Co. v. Costl e , 445 U .S.6 Narr agan sett also relies on Modine Manufacturing Corp. v.

Kay , 791 F. 2d 267 (3d Cir. 1986), which held that within the context of that case, an EPA interpretation of a "pretreatment standard" to apply it to a certain type of industrial process was reviewable under section 1369(b) just as the EPA's promulgation of a pretreatment standard itself would be. While we do not necessarilyagree with the result in Modine , which reflected a "liberal" interpretation of section 1369, see id. at 269-70, that has not been followed in other cases, we find Modine easily distinguishable for several reas ons. The interpretation in that case was not conducted pursuant to a very limited referral under the p rimary jurisdiction doctrine, but instead was perform e d pursuant to certain formalized agency procedures. Further, the "interpretation" here is of a listing, not of an effluent standard; thus the interpretation is an additio nal st ep removed from an action named as reviewable in the statutory text. -15- 193 (1980). Crown Simpsonoffers no support. It held merely that the EPA's decision to veto a state-issued permit under the CWA was directlyreviewable by the courts of appeals u nd er section 1369(b)(1)(F), which gave the appellate courts jurisdiction over the EPA's actions in "issuing or denying any permit" under a certain CWA provision, because the "precise effect of [the EPA's] action [was] to 'deny' a permit," and its action was "functionally si milar" t o

a direct denial of an EPA permit. See id. at 196. Here, as stated above, the FAD issued by the EP A has a different effect than, and is not functionally similar to, a listing (to not even speakof an "effluent standard," the actual statutory language at issue). 6

Since the FAD issued by the EPA here is not functionally equivalent to a listing, Narragansett's argument necessarily fails. The interrelationship between the FAD and an "effluent s ta ndard" cannot be suff icient t o establish jurisdiction under 33 U.S.C. §-16-

1369(b)(1)(C). Narraganse tt makes no arguments under any of the other clauses in section 1369(b ). T hus, we lack original jurisdiction to hear this petition. Original jurisdiction over this petition would seem to lie in the district court under th e AP A. Arguments such as whether the FAD was a f inal agency action reviewable under the APA, see 5 U.S.C . § 7 04 , should be addressed by the district court.

The Commonwealth, as an intervenor, asks that we not dismiss this p etition, thus allowing it to be refiled in any district court, but rather that we transfer the petition, construed

as an APA petition, to the district court c urrentlyhearing the initial, underlying litigation between the Commonwealth an d Narragansett. The Commonwealth ar gues tha t this will allow both

cases to be determined at the same time, preventing undue delay of the underlying action, which began in 1987. 28 U.S.C. § 1631 allows

us to transfer a case over which we lack jurisdiction to any other court where the action originally could have been brought, so long

as such a transfer is in the "interest of justice." See Britell v. United States , 318 F.3d 70, 73-74 (1st Cir. 2003).

Tran sfer here is plainly in the interest of justice: Narragansett has made no argument that it wil l be harmed by the transfer or would prefer a different forum for any reason. Further,

a District of Massachusetts forumcoincides well with Narragansett's filingo f this p etition with the First Circuit. Both the-17-

Commonwealth's interests and interests in "judicial administration"

-- which is a factor in the section 1631 analysis, see id. at 75 -- counsel very stronglyin favor of a transfer. Narragansett argues that section 1631 is intended solely to protect the interests of the filingplaintiff and thus transfer cannot be granted over the filing party's objections. Such a narr ow read of the statute is inconsistent with its language, with Britell , andwith the fact that

a court ca n sua sponte order a transfer even absent a motion from either party, see, e.g. , Phillips v. Seiter , 173 F.3d 609, 610 (7th Cir. 1999), and we d o not adopt it. We will grant the transfer here. If and when the district court does resolve the FFC issue in light of the FAD, any par ty remains free to request review immediatelyin this court under the certification procedure if there is a basis for believing that immediate review wouldbe appropriate. We are not endorsing such a course but merelynoting its existence.

III. We hol d th at we lack jurisdiction over this petition under 33 U.S.C. § 1369(b). The Common wealth's motion to transfer is granted, andthis case is hereby transferred to the United States District Court for the District of Massachusetts. The Clerk of this court is directed to take the n ecessarysteps to effectuate the transfer. No costs are awarded.