8 Mass. App. Ct. 575 | Mass. App. Ct. | 1979
By this action seeking declaratory and injunctive relief the plaintiff Cast Iron Soil Pipe Institute challenges the validity of two amendments to the Massachusetts Plumbing Code (code
We summarize the facts. Cast iron soil pipe is used in plumbing systems for drainage of waste water, sewage, and other waste, which flows through the pipe by force of gravity rather than under pressure. It is also used to drain rain water from building roofs. Cast iron soil pipe is manufactured in segments. The traditional method for joining these segments together requires that each segment be manufactured with one end (the bell or hub) larger in diameter than the remainder of that segment (the spigot). The spigot end of one segment is inserted into the bell or hub of the other segment and the joint thus created is sealed with lead and oakum.
The more recently developed, so called “hubless,” system for joining cast iron soil pipe segments together with
The plaintiff holds a patent
Before the adoption of the challenged amendments to the code the code provisions relating to the use of the hubless cast iron soil pipe system were as follows. Sub-paragraph 6.1.1 ("Minimum Standards”) of Section 6, provided, "All materials, systems, and equipment used in the construction, installation, alteration, repair, replacement, or removal of any plumbing or drainage system or part thereof, shall conform at least to the standards listed in this Section and be approved by the Board” with certain exceptions not material for present purposes. And subparagraph 6.1.3 ("Standards and Approval”) provided, "A material shall be considered approved if it
The standards appearing in Table 6.1.3 were established by fourteen different organizations, including such governmental bodies as the National Bureau of Standards of the United States Department of Commerce and the Federal Supply Service, Standards Division, of the General Services Administration as well as by such private organizations as the American National Standards Institute, the American Society for Testing & Materials, and the plaintiff. The table identified the materials, which must meet certain of these standards, by generic type without differentiation among the products of particular manufacturers (e.g. "Ferrous Pipe, Fittings and Valves” or "Steel Pipe, Stainless”). The standard listed in Table 6.1.3 for "Hubless Cast Iron Sanitary System With No-Hub System Fittings” was "CISPI [Cast Iron Soil Pipe Institute] 301-71.” The record appendix does not disclose the content of that standard.
Paragraph 6.2 ("Allowable Materials”) designated the materials approved for specific uses. Subparagraph 6.2.6 designated at least eight types of pipe and fittings approved for use in "storm and sanitary” systems "below ground” and subparagraph 6.2.7 of the same paragraph
On December 1, 1976, as a result of complaints about the reliability and effectiveness of the hubless cast iron soil pipe system, the board held a public hearing in order, among other things, to review its "approval of the Hub-less Cast Iron Soil Pipe System” as reflected in the summarized portions of Section 6 of the code. The hearing was not conducted as an "adjudicatory proceeding” pursuant to G. L. c. 30A, §§ 10,11, & 13, but as a "legislative” type hearing pursuant to G. L. c. 30A, § 2. At this hearing there was testimony both for and against the board’s approval of the use of the hubless system. A major complaint about the hubless system was that the joints between the pipe segments were not strong enough to withstand the pressures sometimes placed upon them when the pipe was installed underground. There was testimony that the joints either gave way completely or developed leaks when the earth in which the pipe was placed settled or when it heaved as a result of freezing and thawing.
The supporters of the hubless system, aside from denying the contentions of the opponents, relied heavily upon its low cost — less than the hub and spigot system; they argued that disapproving the hubless system would drive up construction costs and contribute to an exodus of industry from the State.
On May 13, 1977, the board voted "to restrict the use of [the] cast iron soil pipe hubless system on all underground installations.” Accordingly, the board drew up an amendment to subparagraph 6.2.6 deleting part (b). After the board obtained the necessary approvals by the Departments of Public Health and Environmental Quality Engineering, that amendment was published and apparently became effective on October 27, 1977.
Also at the May 13 meeting, the board adopted "a guideline for manufacturers who are presently contemplating submitting new couplings to the board for approval for use on the cast iron soil pipe hubless system.” The guideline essentially sought a stronger clamp for use above ground. For example, the guideline suggested clamps wider than those previously approved — the greater width increasing the purchase area of the clamp on each pipe segment and thereby increasing the friction holding the joint together. The guideline also suggested that the clamp be thicker and be made of a more corrosion resistant grade of stainless steel.
The board, however, before taking any final action amending subparagraph 6.2.7(c), which approved the use of the hubless system above ground, decided to hold a second public hearing on September 7,1977. The plaintiff requested that that hearing be conducted as an adjudica
The board chairman brought out the facts that the joint could be strengthened either by increasing the clamp’s capacity to exert pressure over a particular area or by making the clamp wider so that the pressure exerted by the clamp was distributed over a gréater surface area of the two pipe segments; in either case the friction holding the joint together would be increased.
The proponents’ major reliance was upon the low cost of the hubless system compared to the traditional bell and spigot system. They again contended that the increased cost of construction in Massachusetts caused by the disapproval of the hubless system would drive business out of the State, hurting its economy.
On October 5, 1977, the board voted to strike subparagraph 6.2.7(c) of the code and to replace it with a new subparagraph 6.2.7(c) permitting the use, above ground, of “[hjubless cast iron soil pipe and fittings, manufactured in accordance with CISPI Standard No. 301-75, joined with a clamp from a list of approved clamps from the [board] and installed in accordance with CISPI Pamphlet 100 (as revised June 1972).”
1. The board in adopting the challenged amendments to the code proceeded on the assumption that the procedural prerequisites to its actions were those set forth in G. L. c. 30A, § 2, for the adoption of regulations
An agency is required to conduct an adjudicatory proceeding when “the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing.” G. L. c. 30A, § 1(1). In the present case, there were neither (a) statutory nor (b) constitutional requirements that the board conduct such a hearing.
(a) The parties agree that G. L. c. 142, § 13, which authorizes the board to make and amend the code, contains no hearing requirement. First Church of Christ, Scientist v. Alcoholic Beverages Control Commn., 349 Mass. 273, 274 (1965). Associated Indus. v. Commissioner of Ins., 356 Mass. 279, 285 (1969). First Natl. Bank v. Board of Bank Incorporation, 361 Mass. 381, 383 (1972). Contrast Newton v. Department of Pub. Util., 339 Mass. 535, 542 (1959); Bay State Harness Horse Racing & Breeding Assn. v. State Racing Commn., 342 Mass. 694, 701 (1961). The plaintiff, however, contends that G. L. c. 30A, § 13, which provides that “no agency shall revoke or refuse to renew any license unless it has first afforded the licensee an opportunity for” an adjudicatory hearing, is applicable in the present circumstances, the plaintiffs argument being that subparagraphs 6.2.6(b) and 6.2.7(c), as unamended, constituted licenses within the meaning of G. L. c. 30A, § 13, to its members to sell its clamp in Massachusetts. We disagree.
The first paragraph of G. L. c. 30A, § 13, provides, “ ’License,’ as used in this section, includes any license, per
That the board in adopting those subparagraphs, as amended, chose to require that the clamps used be a "300 series stainless steel clamp, as conforms to CISPI Standard”
If the latter is the fact, that still would not convert the subparagraphs into licenses (within the meaning of G. L. c. 30A, § 13) to the plaintiffs members to sell those clamps in Massachusetts.
As the transcripts of the two hearings on the challenged amendments disclose, the major issue before the board was how strong a clamp must be used in the hubless system for the protection of the public health and safety. A significant consideration was a weighing of the benefits to the public health and safety of a stronger clamp against the adverse effect upon the State’s construction industry and economy as a whole of the increased cost of such a clamp — surely a question of "governmental policy peculiarly for the determination of an administrative department.” Natick Trust Co. v. Board of Bank Incorporation, 337 Mass. at 617. That the board was seeking essentially to develop new standards applicable to all manufacturers is shown by the neutral guidelines it adopted for the development of new clamps and by the fact that the two clamps ultimately approved for use pursuant to the new subparagraph 6.2.7(c) are both manufactured by nonlicensees of the plaintiff. To the degree that evidence as to problems that had arisen with previously approved clamps when used in particular construction projects was brought to the attention of the board it was in order "to domesticate or illustrate the general problems, and could not have the effect of transforming the ... [board’s] endeavor into an adjudicatory one.” Cambridge Elec. Light Co. v. Department of Pub. Util., 363 Mass. at 487.
(b) It follows from what has already been said that there was also no constitutional requirement that an adjudicatory hearing be held. Since the proceeding was legislative or political, a hearing is not essential to due process under the Fourteenth Amendment to the United States Constitution or under art. 10 or art. 12 of the Massachusetts Declaration of Rights. United States v. Florida East Coast R.R., 410 U.S. 224, 244-245 (1973). Hayeck v. Metropolitan Dist. Commn., 335 Mass. 372, 375
That the economic interests of the plaintiff and its licensees may have been adversely affected by the challenged amendments is immaterial. A regulation often increases costs or diminishes business expectations. Cambridge Elec. Light Co. v. Department of Pub. Util., 363 Mass. at 488.
(c) The plaintiff also argues that it should have been accorded an adjudicatory proceeding prior to the board’s action at its November 2,1977, meeting which purported "to rescind [its] former approval of all stainless steel couplings manufactured under the specification standard of the hubless cast iron sanitary system with Cl no-hub pipe and fittings of the plaintiff.. . [t]his action not to become effective until June 1,1978,. ...” When we analyze what the board actually intended to accomplish by this action, it is clear that the plaintiff had no right to the adjudicatory hearing. So far as appears from the record before us the only approval the board ever gave to the plaintiffs Cl No-Hub clamp was that reflected in subparagraphs 6.2.6(b) and 6.2.7(c), as unamended, of the code. As we have already seen, the board had, prior to November 2, 1977, effectively rescinded that approval with respect to use under ground by deleting (in a procedurally correct manner) subparagraph 6.2.6(b) permitting use of the hub-less system underground, that amendment taking effect October 27,1977. And, as of November 2,1977, the board had voted, also in a proceedurally correct manner, to amend subparagraph 6.2.7(c) permitting use of the hub-less system above ground, but the amendment had yet to
2. The plaintiff contends that neither the evidence at the two public hearings held by the board nor other evidence which the plaintiff alleges was before the board when it adopted the two challenged amendments supported the board’s action. The plaintiff’s argument incorrectly assumes that the board’s action is invalid unless supported by substantial evidence in the record of the proceedings before it. As we have already established, the board’s action was legislative or political in nature, rather than adjudicatory. There is no requirement that such action be supported by substantial evidence in the record of the proceedings before the board. See Greenleaf Fin. Co. v. Small Loans Regulatory Bd., 377 Mass. 282, 293-294 (1979), and Grocery Manufacturers of America, Inc. v. Department of Pub. Health, 379 Mass. 70, 79-80, 85 (1979). Contrast Salisbury Water Supply Co. v. Department of Pub. Util., 344 Mass. 716, 718 (1962). Rather, the plaintiff must show that the board’s action “crossed ‘the line of arbitrariness’ or was ‘capricious’” (Greenleaf Fin. Co. v. Small Loans Regulatory Bd., 377 Mass. at 293), and all rational inferences will be drawn in favor of the board’s action. Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 541 (1974). We cannot say that the trial judge was clearly in error (Mass.R.Civ.P. 52(a), 365 Mass. 816 [1974]) in finding that the plaintiff had failed to meet that heavy burden. Grocery Manufacturers of America, Inc. v. Department of Pub. Health, 379 Mass. at 85.
Judgment affirmed.
The code was promulgated pursuant to G. L. c. 142, § 13, as amended through St. 1975, c. 706, § 286.
The record appendix does not disclose the exact nature of the plaintiffs patent.
It does appear that a nonlicensee of the plaintiff manufactured a cast iron clamp.
The code may now be found at 11 Code Mass. Regs., Title 248, § 2.00 et seq. (1978). Some time after the adoption of the challenged amendments, the sections of the code were renumbered. The following conversion table indicates the new numbers of the relevant sections as amended:
Old section numbers New section numbers
6.1.1
2.06(l)(a)
6.1.3
2.06(l)(c)
Table 6.1.3
Table 1
6.2
2.06(2)
6.2.6
2.06(2)(f)
6.2.7
2.06(2)(g)
6.2.7(c)
2.06(2)(g)3
"300 series” apparently refers to the grade of stainless steel.
The cast iron clamp (see n.5) was not approved for use in Massachusetts by the code.
Once again the parties have given us no guidance as to the content of "CISPI Standard 301-75” or "CISPI Pamphlet 100.”
The Clamp-All clamp was a clamp for the hubless system manufactured by a nonlicensee of the plaintiff. Whether the Clamp-All
It is agreed that violations of the code are punishable by fine.
See also Sacks & Curran, Administrative Law, 1954 Ann. Survey Mass. Law 126, 131, in which it is said, “The hearing procedure provided in [G. L. c. 30A, § 2] is left completely flexible. The [State Administrative Procedure Act] imposes none of the formalities required in adjudicatory proceedings ....”
That the subparagraphs were so worded was perhaps a matter of convenience in view of the claim in the plaintiffs brief that the plaintiff "and its members were the hubless industry at the time of the [b]oard’s approval.”
See Greenleaf Fin. Co. v. Small Loans Regulatory Bd., 377 Mass. 282, 301 (1979), and Grocery Manufacturers of America, Inc. v. Department of Pub. Health, 379 Mass. 70, 81-82 (1979).
We need not decide whether that fact would take the two subparagraphs, as unamended, outside the scope of the definition of "regulation” contained in G. L. c. 30A, § 1(5). Unlike the Federal Administrative Procedure Act, ours does not define adjudicatory proceeding in terms of what is not a regulatory proceeding. Compare G. L. c. 30A, § 1(1), with 5 U.S.C. § 551(6) & (7). See Sacks & Curran, Administrative Law, 1954 Ann. Survey Mass. Law 126, 135 n.l. See also Commonwealth v. Sisson, 189 Mass. 247, 250-252 (1905).