Cast Iron Soil Pipe Institute v. Board of State Examiners of Plumbers and Gas Fitters

• Decision Date: 18 May 1979
• Parties: CAST IRON SOIL PIPE INSTITUTE v. BOARD OF STATE EXAMINERS OF PLUMBERS AND GAS FITTERS 1 et al. 2
• Court: Appeals Court of Massachusetts

Page 457

396 N.E.2d 457

8 Mass.App.Ct. 575

CAST IRON SOIL PIPE INSTITUTE

v.

BOARD OF STATE EXAMINERS OF PLUMBERS AND GAS FITTERS

¹

et al. ²

Appeals Court of Massachusetts, Suffolk.

May 18, 1979.

Oct. 31, 1979.

James J. Myers, Boston (William A. Zucker, Boston, with him), for plaintiff.

Donald K. Stern, Asst. Atty. Gen., for the Board of State Examiners of Plumbers & another.

Robert E. Dickinson, Chestnut Hill (Leo A. Reed, Boston, with him), for Massachusetts Ass'n of Plumbing, Heating and Cooling Contractors, Inc., & others, amici curiae.

Before KEVILLE, BROWN and PERRETTA, JJ.

BROWN, Justice.

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 ³ ) adopted by the defendant Board of State Examiners of Plumbers and Gas Fitters (board) affecting the use in Massachusetts of so-called hubless cast iron soil pipe. The trial judge made findings of fact pursuant to Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), and ordered that judgment enter declaring the challenged amendments valid. The plaintiff appeals from the ensuing judgment. We affirm.

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 one another or with other fittings, as its name suggests, does not rely upon each pipe segment's having a hub or bell; rather the segments are of relatively uniform diameter. A cylindrical gasket made of neoprene (a synthetic rubber), which fits over or around the joint between two pipe segments, seals the joint, making it fluid tight. A stainless steel clamp, also cylindrical, which fits over or around the gasket and is tightened by means of bolt screws, holds the two pipe segments together by means of friction.

The plaintiff holds a patent ⁴ controlling the design of certain stainless steel clamps which are manufactured for use in the hubless system and which bear the trademark "CI No-Hub." The plaintiff does not itself manufacture those clamps but licenses manufacturers of cast iron soil pipe and fittings to make and sell those clamps. The licensees are considered members of the plaintiff institute. Whether others who are not licensees of the plaintiff manufactured stainless steel clamps for use in the hubless system prior to the actions of the board here challenged is not clear from the record before us. ⁵

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. Subparagraph 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 meets one or more of the standards listed in Table 6.1.3, Standards for Plumbing Materials and has been designated by the Board for specific use, or uses, in this Section or other sections of this Code." ⁶

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 designated at least eleven types of pipe and fittings approved for similar use "above ground." The types were differentiated primarily generically rather than by the products of particular manufacturers. Part (b) of subparagraph 6.2.6 designated for use below ground and part (c) of subparagraph 6.2.7 designated for use above ground "Hubless cast iron soil pipe and fittings, joined with 300 series ⁷ stainless steel clamp, as conforms to CISPI Standard." Whether stainless steel clamps manufactured by non-licensees of the plaintiff conformed to these provisions of the code and were accordingly sold and used in Massachusetts is not entirely clear from the record before us; ⁸ we shall assume in favor of the plaintiff that its licensees were the only ones manufacturing clamps in conformity with these provisions. It does appear that non-licensees of the plaintiff manufactured hubless pipe conforming to these provisions.

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 Hubless 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.

Another general complaint about the hubless system expressed by some was that both the clamps and the pipe segments were occasionally defectively manufactured. For example, there were complaints that the bolt screws on the clamp, and the threads into which they are tightened, gave way or failed to hold. Finally, there were complaints that the clamps did not remain sufficiently tight.

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 adjudicatory proceeding as defined by G.L. c. 30A, §§ 10-13, on the ground that it was threatened with the divestiture of a valuable property right. The board refused and conducted the hearing as a legislative hearing. At that hearing the opponents of the hubless system contended that clamps conforming to the old code provisions loosened and that leaks occurred when the pipe was subjected to vibration, or when inadequate swaybracing was installed. The opponents again contended that components of the hubless system were defectively manufactured.

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 greater surface area of the two pipe segments; in either case the friction holding the joint...