Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations
Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations
Opinion of the Court
Worcester Sand & Gravel Company, Inc. (Worcester Sand), brought an action for declaratory relief, seeking
The board is created pursuant to G. L. c. 22, § 14 (1984 ed.). Its fourteen members consist primarily of public safety officials and representatives of the blasting and construction industries. The board is within the Department of Public Safety but is not under the control of the Commissioner of Public Safety. In promulgating the regulation at issue, the board relied primarily on the authority provided in G. L. c. 148, § 9 (1984 ed.). Chapter 148, § 9, in relevant part provides: “The board shall make rules and regulations for the keeping, storage, use, manufacture, sale, handling, transportation or other disposition of gunpowder, dynamite, crude petroleum or any of its products, or explosive or inflammable fluids ... or any explosives of a like nature, or any explosives, fireworks, firecrackers, or any substance having such properties that it may spontaneously, or acting under the influence of any contiguous substance, or of any chemical or physical agency, ignite, or inflame or generate inflammable or explosive vapors or gases to a dangerous extent . ...” In a word, the statute gives the board broad authority to regulate the use of explosives, including blasting.
Of course, not every agency regulation will be upheld simply because the regulation is not expressly prohibited by the statute. At a minimum, there must be a rational relation between the regulation and the empowering statute. White Dove, Inc. v. Director of the Div. of Marine Fisheries, 380 Mass. 471, 477 (1980), and cases cited. The requisite relation between the statute and the regulation is present here. We reject Worcester Sand’s contention that the determinative issue is whether the regulation advances a public safety interest. Even though safety is a primary concern of the statute, the legislative scheme manifests a plan to protect both persons and property from
Worcester Sand further argues that, even if the board had authority to adopt the regulation in question, the regulation is still invalid because it is arbitrary and capricious. We do not agree. In challenging a regulation as arbitrary and capricious, Worcester Sand cannot carry its burden simply by showing that the administrative record does not contain facts which support the regulation. Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 721-722, cert. denied sub nom. Formaldehyde Inst., Inc. v. Commissioner of Pub. Health, 464 U.S. 923 (1983). Instead, Worcester Sand must meet the formidable burden of proving the absence of any conceivable ground upon which the regulation can be upheld. Arthur D. Little, Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 553 (1985). If the question is fairly debatable, we cannot substitute our judgment for that of the board. Arthur D. Little, supra. Our examination of the record indicates that this issue was debatable, and, therefore, we refuse to substitute our judgment for that of the board.
Our review of the administrative proceedings indicates that there was a rational basis for the vibration limits adopted in the regulation. Microelectronics experts submitted ample evidence to the board that excessive vibration impairs the microelectronic manufacturing process. Richard J. Holt
Philip Berger
The limits adopted by the board appear to be a compromise between the proposals submitted by the microelectronics industry and the representative of the blasting industry on the board. The regulation allowed some blasting, but contained limits so that microelectronics firms would have a measure of predictability in their vibration environment. Worcester Sand claims these vibration limits are irrational because they do not take into account the geological conditions between the blast site and the microelectronic site. Whether the board ultimately adopted the best possible regulation is immaterial, however, because a regulation will not be invalidated simply because the means chosen to “achieve the statutory end is rough, illogical or not the best available. ” American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468, 478 (1983), quoting Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981).
Worcester Sand also contends that the exceptions created by the regulation are further proof that the regulation is arbitrary. Worcester Sand argues that the vibrations caused by its quarry blasting would be no different from those caused by the excepted activities. The excepted activities include public roads, subdivision developments, temporary quarries, and existing quarries. These exceptions do not support the conclusion that the regulation is arbitrary. The board may have excepted these projects from the new vibration regulation either out of concerns for fairness or because they are in the public interest. In any event, the board is not required to adopt the best possible regulation. Id. at 477-478. The argument that the excepted activities produce the same vibrations as the restricted activities simply tends to show that the regulation is rough,
Judgment of the Superior Court affirmed.
Appendix.
Title 527 Code Mass. Regs. § 13.11 (l)(e), promulgated on September 20, 1984, reads as follows:
“Blasting Within a 22A Mile Radius of a Microelectronic Manufacturing Operation. Except as hereinafter provided, no blasting shall be conducted within a two-and-one-half (2Vz) mile radius of a microelectronic manufacturing operation that will cause vibration velocities to exceed by more than ten percent (10%) the existing vibration velocity at said operation.
“Alternatively, blasting may be conducted in accordance with the following table:
Radial Distance in Miles
from a Microelectronic Maximum Charge-Weight
Manufacturing Operation Per Delay in Pounds
Less than .75 0*
Between .75 and 1 110
Between 1 and 1.5 200
Between 1.5 and 2 450
Between 2 and 2.5 800
“Blasting may be conducted that causes vibration velocities to exceed the limits set forth above when entirely incidental to utility construction in public ways and private property, in roadwork, and in infrastructure construction. With the approval of the Marshal, blasting may also be conducted that causes vibration velocities to exceed the above limits when entirely incidental to or in connection with the construction of any structure for which a building permit has been issued or for subdivisions which have been approved under M.G.L. c. 41. For all such blasting permitted by this paragraph, reasonable notice, but in no event less than seventy-two (72) hours prior to the proposed blasting, shall be given in writing to the management of the microelectronics operation, except that lesser notice may be given in certain emergency situations under M.G.L. c. 82, § 40, the so-called ‘Dig Safe Law.’
“As used herein, ‘microelectronic manufacturing operation’ shall mean a facility that fabricates integrated circuits; and ‘existing vibration velocity*471 at a microelectronic manufacturing operation’ shall mean the vibration velocity near the base of the facility which shall be measured by placing the vibration sensors near as possible to the base of the microelectronic facility at a location nearest the blasting site. The existing vibration velocity shall be established by measuring vibration during a typical one-minute period in the absence of blasting.
“Notwithstanding anything to the contrary in 527 CMR 13.11(l)(e), active quarries which have conducted blasting on a regular basis predating the effective date of 527 CMR 13. ll(l)(e) shall be exempt from all the requirements contained herein, as well as roadwork quarrying operations and temporary quarries, a temporary quarry being an operation that has been granted a three-month permit which may not be renewed without approved site development plans from a planning board.”
The full text of the regulation in effect at the time this action was initiated is reprinted in the Appendix to this opinion.
In the Appeals Court, the instant case was consolidated with two cases titled Maureen J. Tebo & others vs. Board of Appeals of Shrewsbury & others. Further appellate review was granted only for the instant case.
Richard J. Holt received a master’s degree in geophysics in 1956 and since 1961 has been the president of Weston Geophysical Corporation. He has prepared more than 300 individual geophysical research or engineering reports for private clients and has published many articles in the fields of geology and geophysics.
Dr. Eric E. Ungar is the principal engineer at BBN Laboratories, a division of Bolt Beranek and Newman Inc. He received a doctoral degree
Philip R. Berger is the executive vice president of Philip Berger & Associates, Inc. The firm has been in business since 1971 and has been involved in measuring and assessing the impact of vibration and noise produced by blasting and industrial processes.
No blasting permitted that increases vibration velocity at the site of a microelectronic facility by more than 10%.
Dissenting Opinion
(dissenting). I agree with the conclusion of the Appeals Court that the regulation at issue is beyond the scope of the statute and, therefore, I dissent. Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 630 (1986). I adopt this view in part for the reasons expressed by the Appeals Court, and in part because of my continuing concern over the standards of judicial review (more appropriately, the lack thereof) applicable in the Commonwealth to administrative agencies. I have expressed these views in the past, regrettably always in dissent, so that I need only comment on our practice in the context of this opinion.
The court concedes that the board’s enabling statute is concerned with safety. The Appeals Court correctly concludes, id. at 629-630, that the regulation is concerned with economic activity and favors one type, the manufacture of electronic components, over another, quarrying rock. I, therefore, consider the scope of judicial review of the regulation of economic activity by an agency specifically authorized by the Legislature to issue regulations for the protection of public safety. I would note at the outset that not only is the enabling statute concerned with safety but it nowhere gives the board any specific authority to regulate blasting. The plaintiff concedes that blasting may be regulated for safety reasons but the court goes further and finds no impediment to the agency’s regulating economic activity as well. I disagree.
Thus, the flaws inherent in the rational basis test of administrative regulation, see Arthur D. Little, Inc., supra at 557 (Lynch, J., dissenting), would lead me to examine the statute under which the regulations were adopted for some clear indication that the scope of the regulations is included within the legislative grant. With a succinct turn of phrase the Appeals Court suggests that “[w]hen subjected to review of validity, an administrative agency’s regulation has a running start.” Tebo, supra at 627. Not only has this court given agency regulations a running head start but the agency is running a flat race while the opposition is required to leap over hurdles, and high ones at that.
Dissenting Opinion
(dissenting). Like Justice Lynch, I agree with the Appeals Court that the regulation at issue exceeds the authority of the Board of Fire Prevention Regulations and therefore is invalid. The reasoning of the Appeals Court is right on the mark. As the Appeals Court stated, the board’s “assignment” under G. L. c. 148, § 9 (1984 ed.), is to protect “the public and property generally against danger and injury from fire and explosion.” Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 627 (1986). “Study of the organic statute as a whole is persuasive that its preoccupation is safety; the Department of Public Safety has the over-all responsibility for that subject matter. Fire prevention, explosion prevention, and blasting regulation have the common objective of controlling phenomena which have an inherent potential for disaster. . . . The fire board’s writ to promulgate safety regulations of general applicability is surely very broad. [However] the regulation in question . . . does something quite different from protecting against hazard in the conventional sense. It proscribes blasting in certain locations irrespective of safety concerns. The blasting may threaten no lives, cause no rocks to fly, and impair no buildings. It is enough that it is within a certain distance of an occupation that wants a high degree of protection from vibration and dust. In a most attenuated way ... the insulation of calibration equipment from vibration is a form of protection of property. The property concerned, however, is discrete and peculiarly vulnerable. The protection afforded by the regulation is not of general, but specially directed applicability. Seen realistically, what the fire board’s new regulation does is to favor one form of economic activity, manufacture of microelectronic components, over another form of economic activity, quarrying rock and grading land for development. It is quite apparent that economic choice, rather than safety, underlies the regulation. The regulation tolerates existing vibration velocity; it tolerates blasting with vibration velocities in excess of specified limits if incidental to utility construction in public ways, roadwork, or infrastructure construction, and, significantly, it tolerates existing quarries even though they increase vibration velocity. Were any of those
The last paragraph of 527 Code Mass. Regs § 13.11 (1) (e), reads as follows: “Notwithstanding anything to the contrary in 527 CMR 13.11 (1) (e), active quarries which have conducted blasting on a regular basis predating the effective date of 527 CMR 13.11 (1) (e) shall be exempt from all the requirements contained herein, as well as roadwork quarrying operations and temporary quarries, a temporary quarry being an operation that has been granted a three-month permit which may not be renewed without approved site development plans from a planning board.”
Reference
- Full Case Name
- Worcester Sand & Gravel Company, Inc., & Another vs. Board of Fire Prevention Regulations
- Cited By
- 19 cases
- Status
- Published