National Kerosene Heater Ass'n, Inc. v. Com. of Mass.
| Decision Date | 24 February 1987 |
| Docket Number | Civ. A. No. 86-0847-S. |
| Citation | 653 F. Supp. 1079 |
| Court | U.S. District Court — District of Massachusetts |
| Parties | NATIONAL KEROSENE HEATER ASSOCIATION, INC., Plaintiff, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants. |
COPYRIGHT MATERIAL OMITTED
Thomas F. Holt, Jr., DiCara, Selig, Sawyer & Holt, Boston, Mass., for plaintiff.
E. Michael Sloman, Thomas A. Barnico, Asst. Attys. Gen., Government Bureau, Boston, Mass., for defendants.
Defendants Motion for Summary Judgment February 24, 1987.
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
The plaintiff, National Kerosene Heater Association, Inc. ("NKHA"), brings this action to challenge the constitutionality of M.G.L. c. 148, §§ 5A and 25B, Mass.St.1985, c. 625, which ban the sale and use of unvented liquid fired space heaters in Massachusetts. NKHA asserts that the Commonwealth's statutory scheme is preempted by the supremacy clause of the United States Constitution, the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. and certain administrative actions taken by the Consumer Product Safety Commission. NKHA also contends that the statutes violate the commerce clause of the United States Constitution, the equal protection and due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution and the Massachusetts Declaration of Rights. In addition to declaratory and injunctive relief, NKHA seeks monetary damages from the Commonwealth and the individual defendants, the Attorney General, the Secretary of Public Safety, and the State Fire Marshal, in both their individual and official capacities.
On March 13, 1986, I denied plaintiff's request for a temporary restraining order and ordered the Commonwealth to file promptly an opposition to plaintiff's motion for a preliminary injunction and a motion for summary judgment on the preemption issues. I also ordered, and counsel for all parties agreed, that the application for a preliminary injunction be consolidated with trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2).
Defendants have now moved for summary judgment on all claims. Plaintiff opposes the motion and has filed a cross-motion for partial summary judgment limited to the preemption issue. However, relying on my briefing order of March 13, 1986, plaintiff has not briefed or argued the issues raised by defendants' motion concerning the commerce clause, due process and equal protection challenges or the individual defendants' assertion of official immunity. NKHA merely asserts that factual disputes exist which render summary judgment inappropriate on these issues. Because these factual disputes may be immaterial, plaintiff is directed to file a brief specifying the materiality of each alleged dispute and the evidence which makes the dispute "genuine". Fed.R.Civ.P. 56(c); see White v. Hearst Corp., 669 F.2d 14, 18 (1st Cir.1982) (quoting Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976)). This opinion will address only the preemption issues.
The Commonwealth first regulated the use of unvented space heaters in 1962, when the legislature enacted M.G.L. c. 148, §§ 5A and 25B, St. 1962, c. 636 and 688, § 1. As originally enacted, these sections provided:
These sections were amended by an Act, Mass. St.1985, c. 625, which was signed into law by the governor of the Commonwealth on December 23, 1985. The Act deleted the first sentence of each section and inserted in place thereof the sentence, "No person shall use, allow to be used, sell or offer for sale any unvented liquid-fired space heater." The other portions of §§ 5A and 25B, including the criminal penalties and the definition of "space heater" in § 25B, remain unchanged.
A comparison of the original and amended versions of §§ 5A and 25B reveals that the Act had several effects:
(1) the ban on use provided by both sections is broadened to prohibit any use; formerly, the ban was limited to use in "any building which is used in whole or part for human habitation";
(2) a prohibition on the sale of unvented liquid-fired space heaters is added to both sections; and
(3) the coverage of § 5A is expanded to include "any unvented liquid-fired space heater", not just "portable wick-type space heaters".
As a consequence, there is now in effect a complete ban on the sale or use of any unvented liquid-fired space heater in Massachusetts.
This action concerns the extent of permissible state regulation of portable, self-contained, free-standing, unvented, kerosene-fueled space heaters. Unvented heaters lack a flue so that any fumes produced by the heater are released into the area in which the heater operates. Unvented portable kerosene heaters are generally classified as either "old style" or "new generation". Old style heaters were the only type in existence when the initial Massachusetts statutes were enacted in 1962. These heaters were typically cylindrical in shape, with a relatively high center of gravity making them likely to tip over. In one version, fuel for the heater was stored in an inverted fuel tank from which it was fed by gravity to the point of combustion. This fuel system was known as a "barometricfed" fuel control. As kerosene expands when fed into a warm heater, this system sometimes resulted in an increase of pressure within the tank and an overflow of fuel at the ignition point. Another version of the old style heater relied on a wick fuel-feed device. A large number of domestic fires were attributed to these heaters.
After Massachusetts enacted the original § 5A, dealing with wick-type heaters, and § 25B, concerning barometric-fed heaters, heater manufacturers developed a "new generation" of kerosene heaters. These heaters "incorporate significantly advanced technological designs and safety features not present in the old style units". Complaint ¶ 16. Barometric-fed fuel controls are apparently no longer used, and safety features such as low centers of gravity, tipover switches, shutoff devices, guards and/or grills, leak resistant seals, fuel storage limits, temperature guards, and wick stops have been added. These features attempt to reduce the hazards associated with unvented heaters, including open flames, flareups, tipovers, contact burns, oxygen depletion and carbon monoxide. For purposes of this action, NKHA defines "new generation" heaters as those portable kerosene heaters which comply with the 1984 revision of Underwriters Laboratories Standard for Unvented Kerosene-Fired Room Heaters and Portable Heaters, UL 647 ("UL 647").
The Consumer Product Safety Commission ("Commission") first examined the safety hazards of portable kerosene heaters in response to a petition to prohibit the sale of the heaters filed under former 15 U.S.C. § 2059. On October 1, 1979, the Director of the Fire Department of Newark, New Jersey petitioned the Commission to declare that portable kerosene heaters are banned hazardous products because of the fire hazards they present. After a year-long investigation, four of the five members of the Commission concluded that "it is not reasonably necessary at this time to address, by mandatory regulation, any risk of injury from fire hazards that may be associated with portable kerosene heaters." 45 Fed.Reg. 70962 (October 27, 1980). In reaching that conclusion, the Commission relied on the relatively low incidence of injuries and consumer use. Id. The Commission also noted the existence of state and local regulation of portable kerosene heaters (in 107 of 352 jurisdictions contacted), id., and the then-pending revision of the proposed 1958 Underwriters Laboratories ("UL") standard:
available information shows that a more stringent voluntary standard now under development may be adequate to address any fire hazard that may be associated with portable kerosene heaters where such heaters may be permitted in residences by local laws.
Although the Commission denied the petition, Commission staff continued to monitor kerosene heater use, hazard data and progress of the revision of proposed UL 647. In the fall of 1982, the Commission established a priority project to address comprehensively the possible hazards associated with portable kerosene heaters. The first fruit of this project was the June, 1983, Kerosene Heater Report. After review of a number of studies,1 the staff identified several areas in which the safety of kerosene heaters could be improved. Pl.Ex. 5 at 44, 45. However, the staff did not recommend any mandatory action for two reasons: "there has been continuous progress in upgrading the existing UL Standard" and "the kerosene heater industry has demonstrated, to date,...
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