Associated Industries of Massachusetts v. Frechette

No. 94128 Equity (Mass. Super. Ct. January 14, 1972)

Commissioner of Public Health did not abuse his discretionary authority when he denied plaintiffs' request for a one year postponement of the effective date of an air pollution control regulation reducing the permissible sulfur content in fuel oil to 1% (.5% in the Boston Metropolitan Area). The Commissioner's finding that existing data were not sufficient to justify a conclusion that state ambient air standards were being met by less restrictive regulation of sulfur content in fuel oil is supported by the evidence.

Counsel for Plaintiffs
Samuel Hoar
Joseph C. Tanski
Goodwin, Procter & Hoar
28 State Street
Boston, Massachusetts 02109

Counsel for Defendant
Robert H. Quinn Attorney General
David B. Gittelsohn
Roger Tippy Asst. Attorneys General
373 State House
Boston, Massachusetts 02133

[2 ELR 20113]

Kalus, J.

FINDINGS, RULINGS and ORDER FOR DECREE

1. The court finds and rules that an actual controversy has arisen and is specifically set forth in the pleadings within the meaning of G.L.C. 231A, § 1, as amended, as between the petitioners Sprague Electric Company, Deerfield Glassine Company, Barre Wool Combing Company and the respondent as he is Commissioner of the Department of Public Health of the Commonwealth (the Department). The court finds and rules that the petitioner Associated Industries of Massachusetts (A.I.M.) is not a proper party and has no standing in this suit. No controversy has arisen or exists between A.I.M. and the Department. Cf. Kelley v. Board of Registration of Optometry, 351 Mass. 187, 192.

2. In essence, the petitioners seek a declaration setting aside the action of the Department in refusing the petitioners' request to defer the implementation of the second stage of a regulation promulgated on April 14, 1970, effective as of October 1, 1971; this regulation prohibits the burning of any residual fuel oil in excess of 0.55 pounds per million BTU heat-release potential. The first stage of the regulation, effective from October 1, 1970 to September 30, 1971, permitted the burning of residual oil containing no more than 2.2% sulfur content of fuel in state-wide districts, and not more than 1% sulfur conent of fuel burned in the Metropolitan Boston District. The second stage of the implementation regulation provides stricter limitations on the sulfur content of fuel — to wit: fuel burned in the state-wide districts may not exceed 1% sulfur content and fuel burned in the Metropolitan Boston District may not exceed .5% sulfur content.

Specifically, the petitioners asked the Department either to modify this regulation by postponing the effective date of the second stage for one year or, in the alternative, "grant a general one year variance" from this requirement.

The petitioners do not attack the regulation per se. In substance, the petitioners contend that the first stage of the implementation plan has met the ambient air standard prescribed by the Department and therefore the imposition of the second or more restrictive standard was unnecessary, and consequently arbitrary and beyond the power of the Department. Petitioners further contend that in denying their request the Department acted pursuant to "improper and unlawful proceedings".The petitioners concede that the burden of proof was upon them to satisfy the Department that their request was consistent with the aims and objectives of the "Clean Air" Legislation.

3. Upon receipt of the petitioners' request, the Department, after due notice, held public hearings. At these public hearings, testimony was introduced in support of the petitioners' contention. There was also evidence from experts in opposition to the petitioners' request. The court finds and rules that there was ample [2 ELR 20114] evidence of a substantial nature adduced at the hearings to justify the action of the Department. The Public Health Council, acting in an advisory capacity (see DPH Regulation for the Control of Air Pollution 50.1), after having considered a summary of this testimony (Exhibit No. 12), voted to reject the petitioners' request. Petitioners' contention that a consensus in favor of the variance was reached by the Department's Bureau of Air Use Management was contradicted by an employee of the Bureau. (See testimony of Mr. Hagg.)

The plain fact of the matter is that the Department was not convinced, and justifiably so, that there was a sufficiency of monitored data then available to conclude that the existing state ambient air standards were being met and preserved by the first stage implementation program. In its considered judgment, the Department deemed it necessary to refuse to defer or delay the implementation of the second stage of the regulation. This conclusion had the support of both federal and state officials, and meteorological, medical and economic experts from the public and private sectors. The Department acted in a manner wholly consistent with its objective (as mandated by the legislature) viz., the "attaining, preserving and conserving the highest possible quality of the ambient air compatible to the needs of our society." (See Preamble, Sec. 1.5, of the Ambient Air Quality Standards, Exhibit No. 1.) There can be no dispute that concentrations of sulfur oxide are injurious to public health. The Department's determination as to the permissible level of concentration of this pollutant to be emitted into the atmosphere is based upon a reasonable interpretation of the available data, notwithstanding some opinions to the contrary. The regulation under attack "has reasonable support in evidence". Insurance Co. of North America v. Commissioner of Insurance, 327 Mass. 745, 753. It is well established law that where reasonable men, qualified by expertise to render an opinion upon a particular subject, differ as to what administrative course should be followed, the court cannot substitute its own evaluation for that of the appropriate administrative body. Unless the petitioners can demonstrate, as they have not so done in this case, that the Department has exceeded the powers and authority vested in it, the Department's decision must stand.

The scope of judicial review of administrative action is limited to a determination of whether the Department's findings and rulings "had reasonable support in the evidence."

4. The petitioners' opposition to the second stage implementation regulation is also based upon projected estimates of increased costs of doing business which, they submit, the consumer will be required to bear. In addition they make dire predictions of economic adversity for the Commonwealth, i.e., loss of jobs, flight of industry, etc.

The court is not impressed, as the Department was not, with the reliability and credibility of the dire prophesies, including their additional cost estimates. There has been no reliable showing that the cost factor, or other relevant criteria, compels the conclusion that the Department's decision to require petitioners to comply without delay will result in any irreparable damage or undue hardship.

5. The petitioners' allegation that the regulation will prove "very costly" to industry is without relative probative force or value. The cost in terms of human suffering and anguish due to respiratory infections, with its attendant medical and hospital costs necessary to treat and alleviate those so afflicted, are self-evident. These two propositions may not be mentioned in the same breath.

6. The court finds and rules that the authority of the Department of make rules and regulations for the control of air pollution derives from C. 11, § 142B (for the Metropolitan Boston District) and from § 142D for statewide districts. In relevant extract, § 142B provides that

[t]he department may from time to time, after public hearing, prescribe and establish, amend or repeal, rules and regulations to prevent pollution or undue contamination of the atmosphere of said district.

In relevant extract, § 142D provides that

[t]he powers, duties and rights of the department in the exercise of air pollution control in districts established under this section and the manner in which funds shall be made available to it shall be as provided in [§ 142B].

Hence the regulations under consideration in the case at bar were adopted pursuant to the Department's broad power "to prevent pollution". This power is not limited, as petitioners suggest, to the attainment of the ambient air quality standards.

7. Even assuming the validity of petitioners' statutory construction of G.L. C.111, §§ 142B and 142D, this court can not say that the Department was not acting lawfully in denying the request for a modification or variance since there was "reasonable support in the evidence" to conclude that the second stage of the implementation plan was necessary for the "maintenance and attainment" of the ambient air quality standards. In sum, regardless of which section of C.111 is deemed to govern the Department in this case, the pertinent regulations were adopted pursuant to lawful authority.

8. In conclusion, the court finds and rules that the regulations under attack by the petitioners have been lawfully adopted and, pursuant to the authority cited above, that such regulations are necessary for the prevention of pollution, irrespective of the relationship between the application of the regulations and the State ambient air quality standard. The legislative mandate to the Department expressly declares that the citizens of the Commonwealth desire cleaner air. By this duly-adopted implementation plan, the Department seeks to achieve this goal with due regard to the social and economic factors pertaining to all citizens of the Commonwealth.

9.Accordingly, let a decree be entered (a) dismissing the bill as to Associated Industries of Massachusetts and (b) declaring that the Department acted within its authority and did not abuse its discretion in refusing to grant the petitioners' request for delay.