Massachusetts Rental Housing Ass'n v. Lead Poisoning Control Director

729 N.E.2d 673, 49 Mass. App. Ct. 359
CourtMassachusetts Appeals Court
DecidedJune 8, 2000
DocketNo. 98-P-600
StatusPublished

This text of 729 N.E.2d 673 (Massachusetts Rental Housing Ass'n v. Lead Poisoning Control Director) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Massachusetts Rental Housing Ass'n v. Lead Poisoning Control Director, 729 N.E.2d 673, 49 Mass. App. Ct. 359 (Mass. Ct. App. 2000).

Opinion

Kass, J.

Several trade associations3 and two rental property owners challenge by a declaratory judgment action the accuracy [360]*360of a chemical test (sodium sulfide) prescribed by the Lead Poisoning Control Director of the State Department of Public Health (Director) to detect the presence of lead in residences. They challenge, as well, three notices to the public that the Director has published about lead poisoning hazards. A Superior Court judge, considering the complaint on a motion for summary judgment, allowed summary judgment in favor of the Director. We affirm.

1. Facts and statutory framework. By St. 1971, c. 1081, the Legislature enacted a statutory scheme, now appearing as G. L. c. 111, §§ 189A through 199B (Lead Law), to prevent lead poisoning and to control its sources. Section 190 of the Lead Law, as amended by St. 1993, c. 482, § 3, conferred upon the Department of Public Health a broad mandate to “establish a statewide program for the prevention, screening, diagnosis and treatment of lead poisoning.” In aid of that program, the Director received authority in § 190 to issue regulations.

Paint that contains dangerous levels of lead and was applied to the walls and ceilings of residences in which children five is a particular target of the Lead Law. See G. L. c. 111, § 194. “The means of detection and the amount of lead in the paint, plaster or other accessible structural material that produces the danger of lead poisoning shall be determined by regulation by the [Djirector in accordance with sound medical practice and current technical knowledge.” Ibid., as amended by St. 1993, c. 482, § 5. The Director by regulation specified two acceptable methods of testing for dangerous levels of lead: (1) with a mobile x-ray flourescence analyzer; and (2) with a 6-8% sodium sulfide solution. 105 Code Mass. Regs. § 460.740 (1995). It is the efficacy of the sodium sulfide test in light of “current technical knowledge” that the plaintiffs contest.

In addition to requiring the Director to mount and maintain a campaign of lead paint removal, the Legislature also charges the Director with educating the general public, and particularly purchasers and prospective tenants of residential property, about the sources and signs of lead poisoning, and legal rights and remedies under the Lead Law. See G. L. c. 111, §§ 192, 192B, and 197A. In that connection, the plaintiffs complain that two announcements the Director has made are wrong as matter of [361]*361fact and that a third is incorrect as matter of law. We shall quote the language of those announcements when we discuss below whether the record on summary judgment was sufficient to resolve their accuracy and lawfulness.

2. The sodium sulfide test. This lead detection procedure works by applying drops of a 6-8% sodium sulfide solution to a dry paint sample (in the form of chip, film, or powder). If the solution turns the paint sample light to dark gray or black, that is an indicator of the presence of lead in a concentration greater than 0.5%. 105 Code Mass. Regs. § 460.740(2) (1995). American Society for Testing and Materials, Standard Practice for Use of Qualitative Chemical Spot Test Kits for Detection of Lead in Dry Paint Films (1995). Advantages of the sodium sulfide test are that it is quick, easy, and relatively cheap. Among disadvantages of the test are that sodium sulfide smells bad (like rotten eggs), and that it reacts with several other metals, including iron, nickel, cobalt, copper, mercury, and molybdenum. The test will, therefore, produce false positives. Ibid.

On behalf of the plaintiffs, there are affidavits in support of their summary judgment motion that the sodium sulfide test for lead is old hat and produces an impermissibly high rate of false positives, to the detriment of property owners who will be put to needless lead removal expense when the level of lead is low or there is no lead at all. What the plaintiffs would have us draw from their offerings is that they have put in dispute, for summary judgment purposes, whether the Director’s regulation authorizing use of a sodium sulfide test is “in accordance with sound medical practice and current technical knowledge,” as § 194 requires. The major hurdle the plaintiffs confront — as they concede — is that, if the factual basis of a regulation is fairly debatable, courts in Massachusetts defer to the regulator’s resolution of that debate. Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138-139 (1949). Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 722-723, cert. denied, 464 U.S. 936 (1983). Celia, Administrative Law & Practice § 774 (1986).

There are in the record an affidavit from a qualified expert and technical notes, professional journal articles, and standard practices of the American Society for Testing Materials (introduced through the affidavit) that speak to the convenience, economy, and reliability of the sodium sulfide test. The resultant conflict in the evidence about the merits of the sodium sulfide [362]*362test did not, in the context of reviewing an administrative regulation, leave a material fact in dispute. It was the duty and prerogative of the Director to sift among the conflicting claims and to determine whether the sodium sulfide test had sufficient merit to warrant its continued status as one of the tools that inspectors could use to test for dangerous levels of lead. We defer to the Director’s decision unless, as the Druzik opinion and some of its progeny (perhaps with a touch of hyperbole) have articulated the standard of review, there was no conceivable basis on which the regulation could be upheld. See, e.g., Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 776 (1980); Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations, 400 Mass. 464, 467 (1987). In the instant case, there was ample rational basis for the sodium sulfide test: its convenience, its economy, and its endorsement by other testing authorities.

3. The notices to the public. General Laws c. Ill, § 197A, requires the Director to prepare standard notification forms that warn purchasers of residential property, rental and nonrental, about the hazard of lead paint and similarly warn prospective tenants. In furtherance of that duty the Director in 1995 published a standard notification form directed to prospective tenants that included the following:

(1) “A home with lead paint must be deleaded for a lead poisoned child to get well.”
(2) “Remember, the only way to permanently lower the risk of your child getting lead poisoned is to have your home deleaded if it contains lead paint.”

Those statements are factually inaccurate, the plaintiffs urge, because there are other sources of lead poisoning, e.g., contaminated soil or water and toys. No reasonable person reading the statements with which the plaintiffs quarrel could conclude that lead paint is the only source of lead poisoning. Indeed, preceding sentences in the notification form explain that a child can get lead from other sources such as soil but that “these rarely cause lead poisoning by themselves.” As to the first of the two sentences under attack, there is affidavit material in the record for the rather obvious proposition that children already sick with lead poisoning have a better chance of recovery if they do not live in a residence where they may [363]*363ingest more lead.

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Related

Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations
510 N.E.2d 267 (Massachusetts Supreme Judicial Court, 1987)
Purity Supreme, Inc. v. Attorney General
407 N.E.2d 297 (Massachusetts Supreme Judicial Court, 1980)
146 Dundas Corp. v. Chemical Bank
511 N.E.2d 520 (Massachusetts Supreme Judicial Court, 1987)
Animal Legal Defense Fund, Inc. v. Fisheries & Wildlife Board
624 N.E.2d 556 (Massachusetts Supreme Judicial Court, 1993)
Borden, Inc. v. Commissioner of Public Health
448 N.E.2d 367 (Massachusetts Supreme Judicial Court, 1983)
Druzik v. Board of Health of Haverhill
85 N.E.2d 232 (Massachusetts Supreme Judicial Court, 1949)
Gennari v. City of Revere
23 Mass. App. Ct. 979 (Massachusetts Appeals Court, 1987)

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Bluebook (online)
729 N.E.2d 673, 49 Mass. App. Ct. 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massachusetts-rental-housing-assn-v-lead-poisoning-control-director-massappct-2000.