American Grain Products Processing Institute v. Department of Public Health

Lynch, J.

(dissenting, with whom Nolan and O’Connor, JJ., join). I dissent. We have before us an emergency regulation which, in effect, prohibits the sale of food products in Massachusetts after March 7, 1984, that contain more than 1 ppb of ethylene dibromide (EDB). The record establishes that EDB has been in use in the United States since 1948. After the National Cancer Institute determined in 1975 that EDB appeared to induce cancer in laboratory animals, the United States Environmental Protection Agency (EPA) began a review of the use of the chemical. After careful study the EPA announced on February 3,1984, its recommendations as to safe and acceptable levels of EDB in grain based products. The levels set by the EPA were 150 times greater for products that require cooking and thirty times greater for ready to eat products than the levels set by the department without the opportunity for careful study and without a public hearing. The department justified its rush to judgment by its own determination that an “emergency” existed. The department’s determination that local action, independent of the EPA, was required to address this “emergency” is apparently contrary to the views of the Governor, the administration of the EPA, and even the Commissioner of Public Health. It is also worth noting that, after promulgating this emergency regulation at a level of 1 ppb, the same department suggested to the EPA that the level should be not more than 50 ppb. 49 Fed. Reg. 17144 (April 23, 1984). The standard being imposed upon the industry by this regulation without any opportunity for rebuttal or defense should be put in perspective. Dr. Gordon W. Gribble, professor of chemistry at Dartmouth College is one who has done so. If there had been a public hearing he would have had the opportunity to make his views known that 1 ppb is “one inch in 16,000 miles, or roughly two-thirds of the distance around the earth. One ppb is one second in 33 years, or one minute in the time elapsed since the birth of Christ. One ppb is one penny in ten million dollars. One ppb is one teaspoon of fertilizer spread evenly over a garden of 5000 acres. One ppb is equivalent to four drops of water in a filled Olympic-sized pool (64,000 gallons). *331 Or, for those of you on a low-carbohydrate diet, one ppb is one crouton in a salad weighing 500 tons.” 1

Thus the emergency as perceived by the department is used to justify a hastily conceived standard originally 150 times more stringent than that imposed by the Federal agency that has studied the problem for approximately ten years. I believe for this court to follow such questionable action by the department is bad law and bad policy.

The regulations of administrative agencies in this Commonwealth are free from effective judicial review if, without any explanation, or demonstration on the record, there is “any conceivable ground upon which [the regulation] may be upheld.” Colella v. State Racing Comm’n, 360 Mass. 152, 156 (1971). See American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468 , 478 n.6, cert, denied, 464 U.S. 850 (1983). The majority’s decision today applies a similar standard of nonreview to the agency’s determination that an “emergency” exists, whereupon regulations may be promulgated without a public hearing. G. L. c. 30A, § 2. 2

*332 This court recognized in Pioneer Liquor Mart, Inc. v. Alcoholic Beverages Control Comm’n, 350 Mass. 1, 9 (1965), that “ ‘emergency’ findings under c. 30A must be carefully scrutinized because, if unwarrantably made, they may lead to improper denial of public hearings or comment on regulations, to evasion of the salutary purposes of c. 30A and possibly to other serious abuse.”

The decision today is one more step toward agency nonaccountability and carte blanche, a process that has already gone too far. Given the importance of the right to participate in the rule making procedure, and given the broad economic implications of the department’s action in this case, I feel that this court is obliged to look harder than it did at the department’s declaration of emergency. I would not permit the department to avoid holding a public hearing as required by G. L. c. 30A, § 2, and G. L. c. 94, § 192, without a showing on the record that a threat to public health was serious and imminent.

Courts in other jurisdictions have used a stricter standard of review for determinations that an emergency exists, stricter than review of everyday agency action. See, e.g., American Fed’n of Gov’t Employees v. Block, 655 F.2d 1153 , 1157 n.6 (D.C. Cir. 1981) (“[Ejmergency situations are indeed rare”); New Jersey v. United States Envtl. Protection Agency, 626 F.2d 1038, 1045 (D.C. Cir. 1980) (“[Jjudicial review of a rule promulgated under an exception to the [Administrative Procedure Act’s] notice-and-comment requirement must be guided by Congress’s expectation that such exceptions will be narrowly construed”); Senn Park Nursing Center v. Miller, 118 Ill. App. 3d 733, 744 (1983) (“Although we agree with defendant that the existence of an emergency is primarily a matter for an agency’s discretion . . . courts are not conclusively bound by an agency’s determination that an emergency exists. . . . The *333 importance of judicial scrutiny of administrative actions cannot be overemphasized”); Florida Home Builders Ass’ n v. Division of Labor, 355 So.2d 1245, 1246 (Fla. Dist. Ct. App. 1978) (Agency’s statement of emergency must be “factually explicit and persuasive concerning the existence of a genuine emergency”). See also, J.T. O’Reilly, Administrative Rulemaking 40 (1983) (“No agency is immune from tough judicial review, and the good cause exception is especially deserving of tough scrutiny”).

The cases cited above stand for the principle that public participation is central to the rule making process. Since administrative officials are only tangentially responsive to the will of the people, and since the scope of judicial review of their decisions is greatly constricted, public participation is really the only imposition on an agency’s free rein. Therefore, for the department to dispense with the requirement of notice and public hearing, the threat to the public health must be serious and imminent.

No such case is demonstrated here. The question is not whether the department could reasonably determine that EDB causes cancer. The question is whether the risk to the public health is so urgent that serious harm can only be avoided if immediate action is taken, without public participation. Such urgency is clearly not demonstrated on the record before us.

Since I would hold that no demonstrable emergency exists on this record, I would not reach the other issues decided by the majority.

The majority points out that this statement was not made or quoted before the meeting of the Public Health Council on February 6, 1984. That is the point. By using the “emergency” mechanism to avoid the public hearing requirements the department has effectively suppressed the expression of any opinion by interested members of the public. The record of that hearing shows that the discussion was limited to staff and council and that the attorney who represents the plaintiff was present but was not allowed to make a presentation. Such a procedure will always result in a record devoid of assistance to those whose views fail to coincide with those of the agency.

I also disagree with the majority’s holding, ante at 321-322, that the provisions of G. L. c. 30A, § 2, and G. L. c. 17, § 2A, can be reconciled. While the former applies to administrative agencies generally, the latter sets out a specific procedure for the issuance of emergency regulations by the department of public health. Clearly, the more specific statute supersedes the more general. Pereira v. New England LNG Co., 364 Mass. 109, 118 (1973). The assertion that the two statutes can be reconciled because G. L. c. 30A, § 2, addresses emergency actions taken by the department is contrived and unconvincing. Emergencies which affect the public health are qualitatively different from other types of administrative emergencies. Many times emergency regulations are issued because an existing regulation is found to be invalid and a temporary rule is needed until the invalid one can be redrafted. See, e.g., Pioneer Liquor Mart, Inc. v. Alcoholic Beverages *332 Control Comm’n, 350 Mass. 1 (1965). Emergencies which involve the department of public health, on the other hand, involve serious and immediate risk to human life and health, and emergency regulations (as in this case) tend to involve the outright removal of some dangerous substance from public access, at great expense to somebody. It is not unreasonable for the Legislature to have decided that such drastic action not be taken without the approval of the Governor.