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Narragansett Elec. Co. v. EPA

Citation: 35 ELR 20093
No. No. 04-1127, (1st Cir., 05/06/2005)

The First Circuit held that it lacked jurisdiction over an electric company's challenge to a U.S. Environmental Protection Agency (EPA) determination that ferric ferrocyanide is a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Ferric ferrocyanide is not listed on any of the lists incorporated by CERCLA, but the category "cyanides" is included on the Clean Water Act's (CWA's) list of toxic pollutants. In the underlying CERCLA litigation, the court referred the issue of whether the term "cyanides" included ferric ferrocyanide to EPA under the primary jurisdiction doctrine. Not liking EPA's decision, the company appealed. Yet direct appellate review of the precise action here--an interpretation of an already listed toxic pollutant in response to a primary jurisdiction referral--is not within the scope of CWA §509(b). Rather than dismissing the petition, however, the court transferred it to the U.S. District Court of Massachusetts, thereby consolidating it with the underlying environmental litigation that generated the primary jurisdiction referral.