American Grain Products Processing Institute v. Department of Public Health

• Decision Date: 27 June 1984
• Citation: 467 N.E.2d 455,392 Mass. 309
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: AMERICAN GRAIN PRODUCTS PROCESSING INSTITUTE v. DEPARTMENT OF PUBLIC HEALTH et al. 1

Page 455

467 N.E.2d 455

392 Mass. 309

AMERICAN GRAIN PRODUCTS PROCESSING INSTITUTE v. DEPARTMENT OF PUBLIC HEALTH et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 13, 1984.

Decided June 27, 1984.

Carl Valvo, Asst. Atty. Gen. (Francis X. Bellotti, Atty. Gen., Joan C. Stoddard and Stephen S. Ostrach, Asst. Attys. Gen., with him), for defendants.

Thayer Fremont-Smith, Boston (Stuart M. Pape, Washington, D.C., of the District of Columbia, and Amos Hugh Scott, Boston, with him), for plaintiff.

Paul F. Colarulli, Pamela S. Horowitz, Stephen A. Brown, Washington, D.C., of the District of Columbia, and David J. Hatem, Boston, for Grocery Mfrs. of America, Inc., amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

On February 14, 1984, this court issued the following order: "The plaintiff ² contests the validity of the emergency regulation, promulgated by the Department of Public Health (department) on February 6, 1984, immediately banning the sale of food products containing ethylene dibromide (EDB) in the amount of 10 parts per billion (ppb) or greater, and, on and after March 7, 1984, banning the sale of food products containing EDB in excess of the amount of 1 ppb. 105 Code Mass.Regs. §§ 515.000 et seq. (1984). A complaint challenging the validity of this emergency regulation on various grounds was filed by the plaintiff in the Suffolk County Superior Court on February 7, 1984. After hearing, a judge of the Superior Court issued an order on February 9, 1984, preliminarily enjoining the enforcement of the emergency regulation on the ground that the department lacked the power to set tolerances other than in conformity with federally-set tolerances. See G.L. c. 94, § 192. The defendants sought relief from the single justice of this court pursuant to G.L. c. 231, § 118, and G.L. c. 211, § 4A. The single justice reserved and reported the matter, without decision, to the full court. Argument before the court occurred on Monday, February 13, 1984.

"On consideration of the record, memoranda, briefs, and oral argument of the parties, a majority of the court conclude as follows:

"1. General Laws c. 94, § 192, does not preclude the department from issuing the emergency regulation, 105 Code Mass.Regs. §§ 515.000 et seq. (1984).

"2. There is no showing on this record of a violation of the emergency standards set forth in G.L. c. 30A, § 2.

"3. On consideration of the plaintiff's affidavits and submissions in the record, we conclude that the plaintiff has not shown a substantial risk of irreparable harm since (a) the products involved are not perishable; (b) the department is required by G.L. c. 30A, § 2, to hold a public hearing at which all parties may be heard within ninety days of the date of the issuance of the emergency regulation (the court is informed at oral argument that such hearing will commence in the week of March 19, 1984); (c) the public interest has been found by the department to require such emergency action, and there is no showing that the department's decision was arbitrary, capricious, or in violation of law. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-618, 405 N.E.2d 106 (1980).

"4. Additionally, the plaintiff has not shown a likelihood of success in the litigation.

"Thus, a majority of the court concurring, the preliminary injunction of the Superior Court judge is vacated. A rescript will issue forthwith. An opinion or opinions will follow."

This opinion is given in explanation of that order. ³ General Laws c. 94, § 192, on which the Superior Court judge relied, provides that any standards, tolerances, and definitions of purity or quality or identity for food which the department adopts shall conform to those adopted for the enforcement of Federal law. ⁴ The judge did not reach any of the other grounds on which the plaintiff challenged the regulation, nor did his memorandum discuss or compare the harm which would result from the issuance of the injunction to that which would result from its denial. However, "[j]urisdiction of the interlocutory appeal is in large measure jurisdiction to deal with all aspects of the case that have been sufficiently illuminated to enable decision by the [appellate court] without further trial court development." Packaging Indus. Group, Inc. v. Cheney, supra at 615 n. 9, 405 N.E.2d 106 (quoting 16 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 3921, at 17 [1977] ). Having concluded that the question of the balance of harms and the other issues raised by the plaintiff had been illuminated sufficiently below to enable us to decide them, we did so without remanding the case for further hearing by the Superior Court judge. We address these issues in turn after discussing the ground of decision of the Superior Court judge.

1. The validity of 105 Code Mass.Regs. §§ 515.000 et seq. (1984) under G.L. c. 94, § 192. The challenged regulation provides for an "action level" of EDB in food. Any level of EDB in food lower than the action level is acceptable; in establishing action levels of 10 ppb and 1 ppb, 105 Code Mass.Regs. §§ 515.005 et seq. (1984) (the regulation) in effect established tolerances ⁵ for EDB of 9.99 ... ppb and .99 ... ppb. ⁶ General Laws c. 94, § 192, mandates that any tolerance adopted by the department conform to the tolerance, if any, adopted for that substance under Federal law. In order to determine whether the regulation is valid under G.L. c. 94, § 192, therefore, it must be determined whether there is a Federal tolerance for EDB. The plaintiff does not point to any Federal regulation which explicitly sets a tolerance for EDB. ⁷ Rather, it argues that Federal law implicitly sets tolerances for EDB which are less stringent than those established by the department.

The plaintiff's first argument is based on a Federal regulation which states, "The organic bromide residues are exempted from the requirement of a tolerance for residues when the insecticide ethylene dibromide [EDB] is used as a fumigant after harvest for the following grains: Barley, corn, oats, popcorn, rice, rye, sorghum (milo), wheat." 40 C.F.R. § 180.1006 (1983). EDB is an organic bromide; therefore "organic bromide residues," as used in § 180.1006, refers to residues of EDB. Thus, under the Federal scheme, residues of EDB are exempted from the requirement of a tolerance when EDB is used on these raw grains after harvest. The Superior Court judge's decision to grant the injunction was based on his view that this exemption from the requirement of a tolerance was equivalent to an infinite tolerance. ⁸ We disagree with the conclusion of the judge that an exemption is the equivalent of a tolerance. An exemption from the requirement of a tolerance is not itself a tolerance. ⁹ That such an exemption can be conceptualized as a statement of infinite tolerance does not mean that exemptions from tolerances are regarded as tolerances under the Federal scheme. Both Federal and State law recognize that different meaning is to be given to the words "tolerance" and "exemption." See, e.g., 21 U.S.C. § 346a(a)(1) (1982) (authorizing tolerances), § 346a(a)(2) (authorizing exemptions from the requirement of a tolerance), § 346a(b) (providing for the promulgation of regulations establishing tolerances, including zero tolerances), and § 346a(c) (providing for the promulgation of regulations establishing exemptions), G.L. c. 94, § 182 (referring to exemptions and tolerances). Cf. G.L. c. 94, § 192 (containing no reference to exemptions).

We do not find persuasive the argument that the Massachusetts Legislature intended both "tolerances" and "exemptions from tolerances" to be understood from its use of the word "tolerances." To accept such an argument would be in contravention of the clearly expressed intention of the Legislature. If the Legislature had intended the department to be bound by a Federal decision not to set a standard, tolerance, or definition of purity, quality, or identity with respect to a particular substance, as well as by "standards, tolerances and definitions, if any," it would have said so. Cf. G.L. c. 94, § 182, as appearing in St.1968, c. 467, § 14 (director of standards required to adopt the "variations, tolerances and exemptions" [emphasis supplied] established by act of Congress). The Legislature did not use similar words in G.L. c. 94, § 192, and we decline to imply language which it has omitted. Beeler v. Downey, 387 Mass. 609, 617, 442 N.E.2d 19 (1982). "[A] basic tenet of statutory construction is to give the words their plain meaning in light of the aim of the Legislature, and when the statute appears not to provide for an eventuality, there is no justification for judicial legislation." Commonwealth v. Vickey, 381 Mass. 762, 767, 412 N.E.2d 877 (1980).

The "aim of the Legislature" is evidenced by its action in amending G.L. c. 94, § 192, in June, 1948. St.1948, c. 598, § 6. On March 9, 1948, the Attorney General had issued an opinion that it was the legislative intent that rules and regulations under § 192 should be for the purpose of implementing the Federal law referred to in § 192. Rep.A.G., Pub.Doc. No. 12, at 58 (1948). Specifically, he opined that the department was not empowered to adopt rules and regulations with respect to subjects on which no Federal regulation had been adopted, nor to adopt a standard on a food for which no Federal standard had been established. The Legislature thereupon amended § 192 to delete the former requirement that the department's rules and regulations conform to Federal rules and regulations and to add the words "if any" after the reference to Federal "standards, tolerances and definitions." ¹⁰ Clearly, the amendment was intended to overrule the Attorney General's opinion. The section, as it now stands, must be interpreted to mean that the department may adopt a standard for a food...