Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations

Lynch, J.

(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.

*472 Following the traditional approach in this Commonwealth, the court first applies the test whether the board’s interpretation of its own authority is unreasonable. Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 850 (1977). In order to meet that less-than-rigorous test the court has said “[t]hat no more need be discerned than some 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). Not only do we require only that some tenuous basis exists between the regulation and the statute but we have placed the burden on the party challenging the regulation to show that there is no conceivable basis upon which the regulation can be upheld. Arthur D. Little, Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 553 (1985). Furthermore, the agency has no obligation to say why it supports the adoption of a regulation, Arthur D. Little, Inc., supra at 543, or ordinarily to afford interested parties an opportunity to question adverse witnesses. Cf. Boston Licensing Bd. v. Alcoholic Beverages Control Comm’n, 367 Mass. 788, 796 (1975) (ordinarily, commission must afford interested parties an opportunity to present data, views, or arguments). In cases where the agency says that an emergency exists, there is no obligation to give any notice or even afford interested parties an opportunity to be heard. American Grain Prods. Processing Inst. v. Department of Pub. Health, 392 Mass. 309, 322-325 (1984).

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.