Nolan, J.
Worcester Sand & Gravel Company, Inc. (Worcester Sand), brought an action for declaratory relief, seeking [465] review of a regulation promulgated by the Board of Fire Prevention Regulations (board). The regulation imposed certain restraints on blasting conducted within a two and one-half mile radius of microelectronic manufacturing operations. 527 Code Mass. Regs. 13.11 (l)(e)(1984).2 A Superior Court judge granted summary judgment in favor of the board, finding that the board had authority to promulgate the regulation and that the regulation was not arbitrary or capricious. The Appeals Court reversed, stating that the board had no authority to promulgate the regulation. Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 631 (1986). This court granted the board’s application for further appellate review.3 We now affirm the allowance of the motion for summary judgment and uphold the validity of the regulation.
The board is created pursuant to G. L. c. 22, § 14 (1984 ed.). Its fourteen members consist primarily of public safety officials and representatives of the blasting and construction industries. The board is within the Department of Public Safety but is not under the control of the Commissioner of Public Safety. In promulgating the regulation at issue, the board relied primarily on the authority provided in G. L. c. 148, § 9 (1984 ed.). Chapter 148, § 9, in relevant part provides: “The board shall make rules and regulations for the keeping, storage, use, manufacture, sale, handling, transportation or other disposition of gunpowder, dynamite, crude petroleum or any of its products, or explosive or inflammable fluids ... or any explosives of a like nature, or any explosives, fireworks, firecrackers, or any substance having such properties that it may spontaneously, or acting under the influence of any contiguous substance, or of any chemical or physical agency, ignite, or inflame or generate inflammable or explosive vapors or gases to a dangerous extent . ...” In a word, the statute gives the board broad authority to regulate the use of explosives, including blasting.
[466] Worcester Sand concedes that the board has the authority to regulate blasting in order to protect persons, buildings, and other items of tangible property. The crux of Worcester Sand’s argument is that the board’s authority to issue such regulations is limited to instances where the regulations are needed to protect the public safety. We disagree. The starting point of our analysis is the language of the statute. Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985). Although we agree with the Appeals Court that the “preoccupation” of the statute is safety, 22 Mass. App. Ct. at 629, nothing in the statute expressly limits the board to adopting regulations only where a safety concern is implicated. Instead, the statute grants the board extensive power to regulate the use of explosives. In addition, affidavits submitted to the judge indicate that the board itself has long interpreted the statute as granting it exclusive and plenary jurisdiction to regulate all aspects of blasting in the Commonwealth. The board’s consistent, longstanding interpretation of its own authority is entitled to a large degree of deference. Simon, supra at 245 note 8, 246 note 11. Indeed, the deference given to the board’s interpretation of its enabling statute is never greater than where, as here, the board must interpret a legislative policy which is only broadly set out in the governing statute. Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 850 (1977). In this case, the board’s interpretation of its own authority is not unreasonable, nor is that interpretation inconsistent with the statutory language.
Of course, not every agency regulation will be upheld simply because the regulation is not expressly prohibited by the statute. At a minimum, there must be a rational relation between the regulation and the empowering statute. White Dove, Inc. v. Director of the Div. of Marine Fisheries, 380 Mass. 471, 477 (1980), and cases cited. The requisite relation between the statute and the regulation is present here. We reject Worcester Sand’s contention that the determinative issue is whether the regulation advances a public safety interest. Even though safety is a primary concern of the statute, the legislative scheme manifests a plan to protect both persons and property from [467] damage caused by explosives. We think the Legislature did not intend to allow the board to prevent only that property damage which poses a threat to the public safety. In certain instances, damage caused by vibrations which do not threaten the public safety may be severe. A special regulation restricting blasting vibrations is rationally related to the statutory purpose of preventing property damage from the use of explosives. Such a regulation is a proper exercise of the board’s authority.
Worcester Sand further argues that, even if the board had authority to adopt the regulation in question, the regulation is still invalid because it is arbitrary and capricious. We do not agree. In challenging a regulation as arbitrary and capricious, Worcester Sand cannot carry its burden simply by showing that the administrative record does not contain facts which support the regulation. Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 721-722, cert. denied sub nom. Formaldehyde Inst., Inc. v. Commissioner of Pub. Health, 464 U.S. 923 (1983). Instead, Worcester Sand must meet the formidable burden of proving the absence of any conceivable ground upon which the regulation can be upheld. Arthur D. Little, Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 553 (1985). If the question is fairly debatable, we cannot substitute our judgment for that of the board. Arthur D. Little, supra. Our examination of the record indicates that this issue was debatable, and, therefore, we refuse to substitute our judgment for that of the board.
Free access — add to your briefcase to read the full text and ask questions with AI
Nolan, J.
Worcester Sand & Gravel Company, Inc. (Worcester Sand), brought an action for declaratory relief, seeking [465] review of a regulation promulgated by the Board of Fire Prevention Regulations (board). The regulation imposed certain restraints on blasting conducted within a two and one-half mile radius of microelectronic manufacturing operations. 527 Code Mass. Regs. 13.11 (l)(e)(1984).2 A Superior Court judge granted summary judgment in favor of the board, finding that the board had authority to promulgate the regulation and that the regulation was not arbitrary or capricious. The Appeals Court reversed, stating that the board had no authority to promulgate the regulation. Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 631 (1986). This court granted the board’s application for further appellate review.3 We now affirm the allowance of the motion for summary judgment and uphold the validity of the regulation.
The board is created pursuant to G. L. c. 22, § 14 (1984 ed.). Its fourteen members consist primarily of public safety officials and representatives of the blasting and construction industries. The board is within the Department of Public Safety but is not under the control of the Commissioner of Public Safety. In promulgating the regulation at issue, the board relied primarily on the authority provided in G. L. c. 148, § 9 (1984 ed.). Chapter 148, § 9, in relevant part provides: “The board shall make rules and regulations for the keeping, storage, use, manufacture, sale, handling, transportation or other disposition of gunpowder, dynamite, crude petroleum or any of its products, or explosive or inflammable fluids ... or any explosives of a like nature, or any explosives, fireworks, firecrackers, or any substance having such properties that it may spontaneously, or acting under the influence of any contiguous substance, or of any chemical or physical agency, ignite, or inflame or generate inflammable or explosive vapors or gases to a dangerous extent . ...” In a word, the statute gives the board broad authority to regulate the use of explosives, including blasting.
[466] Worcester Sand concedes that the board has the authority to regulate blasting in order to protect persons, buildings, and other items of tangible property. The crux of Worcester Sand’s argument is that the board’s authority to issue such regulations is limited to instances where the regulations are needed to protect the public safety. We disagree. The starting point of our analysis is the language of the statute. Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985). Although we agree with the Appeals Court that the “preoccupation” of the statute is safety, 22 Mass. App. Ct. at 629, nothing in the statute expressly limits the board to adopting regulations only where a safety concern is implicated. Instead, the statute grants the board extensive power to regulate the use of explosives. In addition, affidavits submitted to the judge indicate that the board itself has long interpreted the statute as granting it exclusive and plenary jurisdiction to regulate all aspects of blasting in the Commonwealth. The board’s consistent, longstanding interpretation of its own authority is entitled to a large degree of deference. Simon, supra at 245 note 8, 246 note 11. Indeed, the deference given to the board’s interpretation of its enabling statute is never greater than where, as here, the board must interpret a legislative policy which is only broadly set out in the governing statute. Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 850 (1977). In this case, the board’s interpretation of its own authority is not unreasonable, nor is that interpretation inconsistent with the statutory language.
Of course, not every agency regulation will be upheld simply because the regulation is not expressly prohibited by the statute. At a minimum, there must be a rational relation between the regulation and the empowering statute. White Dove, Inc. v. Director of the Div. of Marine Fisheries, 380 Mass. 471, 477 (1980), and cases cited. The requisite relation between the statute and the regulation is present here. We reject Worcester Sand’s contention that the determinative issue is whether the regulation advances a public safety interest. Even though safety is a primary concern of the statute, the legislative scheme manifests a plan to protect both persons and property from [467] damage caused by explosives. We think the Legislature did not intend to allow the board to prevent only that property damage which poses a threat to the public safety. In certain instances, damage caused by vibrations which do not threaten the public safety may be severe. A special regulation restricting blasting vibrations is rationally related to the statutory purpose of preventing property damage from the use of explosives. Such a regulation is a proper exercise of the board’s authority.
Worcester Sand further argues that, even if the board had authority to adopt the regulation in question, the regulation is still invalid because it is arbitrary and capricious. We do not agree. In challenging a regulation as arbitrary and capricious, Worcester Sand cannot carry its burden simply by showing that the administrative record does not contain facts which support the regulation. Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 721-722, cert. denied sub nom. Formaldehyde Inst., Inc. v. Commissioner of Pub. Health, 464 U.S. 923 (1983). Instead, Worcester Sand must meet the formidable burden of proving the absence of any conceivable ground upon which the regulation can be upheld. Arthur D. Little, Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 553 (1985). If the question is fairly debatable, we cannot substitute our judgment for that of the board. Arthur D. Little, supra. Our examination of the record indicates that this issue was debatable, and, therefore, we refuse to substitute our judgment for that of the board.
Our review of the administrative proceedings indicates that there was a rational basis for the vibration limits adopted in the regulation. Microelectronics experts submitted ample evidence to the board that excessive vibration impairs the microelectronic manufacturing process. Richard J. Holt4 and Dr. Eric E. Ungar5 both submitted letters prior to the promulgation [468] of the regulation at issue to the board stating that the then existing restrictions on blasting vibrations were inadequate to prevent the disruption of microelectronic manufacturing. Holt supported the adoption of a regulation proposed by Sprague Electric Company, which would have prohibited any blasting that would increase the existing vibration levels at a microelectronic manufacturing site. Ungar proposed a regulation that differed from the initial proposal supported by Holt. Ungar’s proposal would have allowed blasting within three miles of a microelectronic site if the blasting would not increase existing vibration levels by more than ten per cent. Alternatively, Ungar proposed a table which would have allowed definite amounts of explosives to be used in blasting, with the amount of permitted explosives increasing as the distance from the microelectronic facility to the blasting site increased. The regulation proposed by Ungar resembles the one ultimately adopted by the board, but the permitted amounts of explosives are greater in the board’s regulation than those originally suggested by Ungar. Worcester Sand relies on data submitted by Ungar in which he stated that it was impossible to determine a vibration level that would be acceptable to all microelectronic manufacturing facilities. Ungar said one level could not be established because of the difficulty in measuring building vibrations and because of the many different types of manufacturing equipment in use. Ungar also clearly stated, however, that the present blasting limits were inadequate and that it would be a mistake to say that vibrations did not have any effect on microelectronic manufacturing. In any event, Worcester Sand does not meet its burden simply by showing that there was testimony before the board which may not support the regulation. Borden, Inc., supra at 722.
Philip Berger6 submitted a statement to the board on behalf of Worcester Sand in which he stated that vibrations caused [469] by quarry blasting last only a few seconds per week. He claimed the regulation was not necessary because no microelectronic facility had ever demonstrated actual harm and because quarry operators could develop notification procedures to inform microelectronics manufacturers when blasting would take place. However, the dispute among experts over the need for additional vibration regulations simply reinforces our conclusion that this issue was debatable and properly left to the board. Arthur D. Little, Inc., supra at 553.
The limits adopted by the board appear to be a compromise between the proposals submitted by the microelectronics industry and the representative of the blasting industry on the board. The regulation allowed some blasting, but contained limits so that microelectronics firms would have a measure of predictability in their vibration environment. Worcester Sand claims these vibration limits are irrational because they do not take into account the geological conditions between the blast site and the microelectronic site. Whether the board ultimately adopted the best possible regulation is immaterial, however, because a regulation will not be invalidated simply because the means chosen to “achieve the statutory end is rough, illogical or not the best available. ” American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468, 478 (1983), quoting Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981).
Worcester Sand also contends that the exceptions created by the regulation are further proof that the regulation is arbitrary. Worcester Sand argues that the vibrations caused by its quarry blasting would be no different from those caused by the excepted activities. The excepted activities include public roads, subdivision developments, temporary quarries, and existing quarries. These exceptions do not support the conclusion that the regulation is arbitrary. The board may have excepted these projects from the new vibration regulation either out of concerns for fairness or because they are in the public interest. In any event, the board is not required to adopt the best possible regulation. Id. at 477-478. The argument that the excepted activities produce the same vibrations as the restricted activities simply tends to show that the regulation is rough, [470] illogical, or not the best available. Id. More is required to invalidate an agency regulation as arbitrary and capricious.
Judgment of the Superior Court affirmed.
Appendix.
Title 527 Code Mass. Regs. § 13.11 (l)(e), promulgated on September 20, 1984, reads as follows:
“Blasting Within a 22A Mile Radius of a Microelectronic Manufacturing Operation. Except as hereinafter provided, no blasting shall be conducted within a two-and-one-half (2Vz) mile radius of a microelectronic manufacturing operation that will cause vibration velocities to exceed by more than ten percent (10%) the existing vibration velocity at said operation.
“Alternatively, blasting may be conducted in accordance with the following table:
Radial Distance in Miles
from a Microelectronic Maximum Charge-Weight
Manufacturing Operation Per Delay in Pounds
Less than .75 0