Arthur D. Little, Inc. v. Commissioner of Health and Hospitals of Cambridge

• Decision Date: 01 August 1985
• Citation: 481 N.E.2d 441,395 Mass. 535
• Parties: ARTHUR D. LITTLE, INC. v. COMMISSIONER OF HEALTH AND HOSPITALS OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 441

481 N.E.2d 441

395 Mass. 535

ARTHUR D. LITTLE, INC. v. COMMISSIONER OF HEALTH AND HOSPITALS OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 4, 1985.

Decided Aug. 1, 1985.

Thomas B. Bracken, Cambridge (Richard T. Murphy, Jr., Cambridge, with him), for plaintiff.

Scott P. Lewis, Boston (Russell B. Higley, Birge Albright and Edward R. Gallagher, Cambridge, with him), for defendant.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

This is an appeal from a judgment, entered by a Superior Court judge, upholding the validity of a regulation issued by the commissioner of health and hospitals of Cambridge (commissioner). The regulation prohibits "[t]he testing, storage, transportation and disposal," within the city of Cambridge, of five highly toxic chemical warfare agents. Arthur D. Little, Inc. (ADL), has challenged the regulation, and the order enforcing it, on a variety of procedural and substantive grounds, contending that: (1) the regulation is invalid because it was issued without a hearing, and without specific findings of any threat to public health; (2) the judge below wrongly deprived ADL of its right to challenge the regulation and order through a trial by jury; (3) the regulation is preempted by the constitutional grant of war and defense powers to the Federal government; (4) the regulation is unreasonable, arbitrary, or capricious; and (5) the regulation violates the contract clause of the United States Constitution, art. I, § 10, cl. 1. We conclude, after examining each of these contentions in turn, that the regulation and order were validly promulgated, and constitute a permissible attempt by the city of Cambridge to protect the health and welfare of its inhabitants.

The facts as established by the materials submitted for the purposes of the summary judgment motions are as follows. In June, 1982, and September, 1983, ADL entered into contracts with the United States Department of Defense (DOD), which called for the testing of small quantities of chemical warfare agents. This testing was commenced in the fall of 1983 at ADL's Cambridge facility, known as Levins Laboratory. The laboratory was constructed and operated in full accord with all applicable Federal and State standards, including standards issued by the DOD. It is located adjacent to Route 2, and within several hundred feet of a busy commercial area and a residential neighborhood.

On March 13, 1984, the commissioner, pursuant to his authority under G.L. c. 111, §§ 31 and 143 (1984 ed.), ¹ adopted the regulation at issue here, which prohibits the "testing, storage, transportation and disposal," within city limits, of five chemical warfare agents being studied at the Levins Laboratory. ² The regulation was to remain in effect until a Scientific Advisory Committee (SAC) study, and an "independent hazard assessment," of those chemicals were completed and reviewed. Also on March 13, the commissioner issued an order under G.L. c. 111, §§ 143 and 146 (1984 ed.), requiring ADL to "cease the storage and testing" of the chemicals listed in the regulation.

ADL promptly filed a complaint in Superior Court for Middlesex County seeking a review of the commissioner's order under G.L. c. 111, § 147 (1984 ed.), and a declaration under G.L. c. 231A, § 1 (1984 ed.), that the regulation issued by the commissioner was invalid. Shortly thereafter, a judge enjoined the commissioner from enforcing the regulation. This injunction has been extended pending the resolution of the merits of ADL's complaint.

In June, 1984, a consulting firm hired by the city issued its "independent hazard assessment." This report contained a detailed scientific analysis "of the potential public hazards involved in experiments with chemical warfare agents" at ADL. The report refrained, however, "from characterizing ... the hazard as 'acceptable' or 'unacceptable.' " ³ The SAC issued its report in September. Certain of its findings are set forth in detail in the margin. ⁴ In short, the SAC concluded that ADL's use of the chemicals listed in the regulation, "within the densely populated City of Cambridge," was "inappropriate," and that the risks involved in such research were "unacceptable." On September 18, 1984, following the submission of these two reports, the commissioner issued a second regulation and order reaffirming the ban on the use of the chemical agents under study at ADL.

The parties filed cross-motions for summary judgment in the Superior Court suit filed by ADL to test the validity of the regulation. On February 27, 1985, by order of a Superior Court judge, judgment was entered on behalf of the commissioner, declaring the regulation valid and enforceable. ADL promptly filed a notice of appeal, as well as a motion for a stay pending appeal. The requested stay, first denied by the Superior Court, was granted on March 15, 1985, by a single justice of the Appeals Court. The commissioner then filed a petition for relief from the stay with a single justice of this court, under G.L. c. 211, § 3 (1984 ed.). The single justice reserved and reported this petition to the full bench. The appeal on the merits, pending in the Appeals Court, was also transferred here. Thus both cases are now before us.

I. PROCEDURAL CHALLENGES.

ADL contends that its statutory and constitutional due process rights were violated, because the regulation was issued without a prior hearing, and without findings of fact based on substantial evidence. We disagree. The State Administrative Procedure Act (APA), G.L. c. 30A, §§ 1 et seq. (1984 ed.), is inapplicable to actions taken by the commissioner pursuant to G.L. c. 111, §§ 31 and 143. Nor does any other statute, or the Constitution, require a hearing or findings to support this exercise of the commissioner's rule making authority. Consequently, the regulation was issued in a procedurally adequate fashion.

First of all, we reject ADL's argument that the commissioner is subject to the procedural requirements of the APA. See G.L. c. 30A, §§ 2-7. General Laws c. 30A, § 1(2), renders the APA applicable to administrative action by "any department, board, commission, division or authority of the state government or subdivision of any of the foregoing, or official of the state government." Because the responsibilities of the commissioner are "confined to the municipality," United Food Corp. v. Alcoholic Beverages Control Comm'n, 375 Mass. 238, 242, 376 N.E.2d 833 (1978), the requirements of the APA are inapplicable. ⁵ See also Commonwealth v. Blackgammon's, Inc., 382 Mass. 610, 626, 417 N.E.2d 377 (1981); Buteau v. Norfolk County Retirement Bd., 8 Mass.App. 391, 392, 394 N.E.2d 993 (1979). ⁶

Nor do we believe that G.L. c. 111, §§ 31 and 143, require either a hearing, Board of Health of Franklin v. Hass, 342 Mass. 421, 423, 173 N.E.2d 808 (1961); Revere v. Blaustein, 315 Mass. 93, 95, 51 N.E.2d 772 (1943), or specific factual findings. See Moysenko v. Board of Health of N. Andover, 347 Mass. 305, 307, 197 N.E.2d 679 (1964). Nothing in the language of either section supports a different interpretation. Section 31 provides that "[b]oards of health may make reasonable health regulations." The section further requires notice by publication, but does not require a hearing or findings. Section 143 prohibits the establishment in a city or town of trades which may be harmful to the public, "except in such a location as may be assigned by the board of health ... after a public hearing has been held thereon." Nonetheless, the same section provides that the board of health may prohibit the exercise of harmful activity "in places not so assigned, in any event." The absence of any provision for adjudicatory procedures in this latter situation is dispositive. "[W]here the Legislature has employed specific language in one [portion of a statute], but not in another, the language should not be implied where it is not present." School Comm. of Brockton v. Teachers' Retirement Bd., 393 Mass. 256, 263, 471 N.E.2d 61 (1984), quoting Beeler v. Downey, 387 Mass. 609, 616, 442 N.E.2d 19 (1982). ⁷

Finally, ADL claims that due process principles require that it be given a hearing, and that the regulation be supported by findings of fact based on substantial evidence. The argument is based on the ground that the regulation is targeted solely at ADL, and thus that the regulation is essentially adjudicatory in nature.

Although the requirements of the APA are inapplicable to the actions taken by the commissioner, the distinction set forth in that statute between "regulation" and "adjudicatory proceeding" is helpful in situations such as that before us now. See Mullin v. Planning Bd. of Brewster, 17 Mass.App. 139, 141-142, 456 N.E.2d 780 (1983). An "adjudicatory proceeding" involves a determination of the "legal rights, duties or privileges of specifically named persons." G.L. c. 30A, § 1(1). On the other hand, a "regulation" includes "every rule, regulation, standard or other requirement of general application and future effect." G.L. c. 30A, § 1(5). See, e.g., Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 716, 448 N.E.2d 367 cert. denied sub nom. Formaldehyde Inst. v. Frechette, 464 U.S. 936, 104 S.Ct. 345, 78 L.Ed.2d 312 (1983); Cambridge Elec. Light Co. v. Department of Pub. Utils., 363 Mass. 474, 486-487, 295 N.E.2d 876 (1973); Cast Iron Soil Pipe Inst. v. State Examiners of Plumbers and Gas Fitters, 8 Mass.App. 575, 586-587, 396 N.E.2d 457 (1979); United States v. Florida E. Coast Ry., 410 U.S. 224, 244-246, 93 S.Ct. 810, 820-821, 35 L.Ed.2d 223 (1973). The regulation at issue here, as the judge below concluded, "applies to the operations of other laboratories and defense contractors in the city and is not an adjudication of the rights of a particular party." We find no reason to disagree. The regulation here is one of "general application and future effect." G.L. c. 30A,...