Number 13 December 9, 1971

Number 13 December 9, 1971 Honorable John F. Kehoe Commissioner of Public Safety 1010 Commonwealth Avenue Boston, Massachusetts 02215 Dear Commissioner Kehoe: Your predecessor requested my opinion as to the jurisdiction of the Department of Public Safety over the construction of a "private gas util- ity" of an above-ground tank of more than 10,000 gallons capacity for the storage of liquified nature gas (LNG). According to additional in- formation which has been provided, the "private gas utility" will dis- tribute and sell LNG both to public utility companies and to the public by means of pipelines and trucking facilities. The following question is posed: "Does a private gas utility, intending to construct a facility for storing and piping gas in liquified form, come under the purview of Section 37 of Chapter 148 of the General Laws, it being understood that the above-ground tanks to be con- structed will contain more than 10,000 gallons and be used for the storage of gas in its fluid or liquid form?" I conclude that the Department of Public Safety does not have juris- diction over the private gas utility, and I therefore answer the question in the negative for the reasons hereinafter stated. P.D. 12 73 General Laws, c. 148, § 37 states in pertinent part: "No person shall construct, maintain or use any tank or container of more than ten thousand gallons' capacity, for the storage of any fluid other than water, unless the same is lo- cated underground, without securing a permit therefor from the commissioner [of Public Safety]." In Op. Atty. Gen., May 27, 1968, at 195, my predecessor ruled that the Department of Public Utilities exercised exclusive jurisdiction over the construction by the Boston Gas Company of an above-ground tank of more than 10,000 gallons capacity for the storage of LNG. It was de- termined that the Legislature, by the enactment of G. L. c. 164, § 105A, intended to vest in the Department of Public Utilities exclusive jurisdic- tion, at the State level, over gas companies and their operations. Id. at 197. Massachusetts General Law, c. 164, § 105A states in pertinent part: "Authority to regulate and control the storage, transporta- tion and distribution of gas and the pressure under which these operations may respectively be carried on is hereby vested in the department [of Public Utilities]." Since I concur in the conclusion reached in the former opinion for the reasons stated therein, the only question for resolution is whether the opinion is altered by the fact that construction of an LNG tank is con- templated by a "private gas utility," as described above. The grant of jurisdiction to the Department of Public Utilities under G. L. c. 164, § 105A quoted above is unrestricted and does not differen- tiate between a "private gas utility" and a "public gas utility," however defined, with respect to the storage of gas. Accordingly, the portion of the statute quoted above must control the situation you raise unless other terms of the statute or the remaining statutory scheme of Chapter 164 can be viewed as imposing a limitation upon the sweep of Section 105A. The latter part of Section 105A does refer to a "gas company," which is defined under G. L. c. 164, § 1 as: "a corporation organized under the laws of the common- wealth for the purpose of making and selling, or distributing and selling, gas within the commonwealth, even though sub- sequently authorized to make or sell electricity." Under the same section, however, this definition applies "unless the context otherwise requires . . . ' To the extent that the definition of "gas company" as formulated imposes any limitation upon the jurisdic- tion of the Department of Public Utilities over the storage of gas by a "private gas utility," I conclude that the context of Section 105 A re- quires that said limitation not apply, for the following reasons. General Laws c. 164, § 105A should be interpreted so as to be ren- dered an effectual piece of legislation in accordance with common sense and sound reason. Atlas Distributing Co. v. Alcoholic Beverages Con- 74 P.D. 12 trol Commission, 354 Mass. 408, 414, and cases cited. The statute should also be construed so as to effectuate its salutary and important purpose {Foley v. Lawrence, 336 Mass. 60, 65), namely the safeguarding of the public from the risks inherent' in the storage of gas. Op. Atty. Gen., May 27, 1968, at 197. Compare Repucci v. Exchange Realty Co., 321 Mass. 571, 575 (statute for the protection of human life to be broadly construed). Neither the vital purpose nor the effectiveness of the statute would be advanced by attributing to the statute an overly narrow con- struction. Moreover, since the term "fluid" in G. L. c. 148, § 37 does not include LNG within its meaning (Op. Atty. Gen., May 27, 1968, at 197), to rule that G. L. c. 164, § 105A does not govern the factual situa- tion you raise might well result in the construction of gas storage tanks without the regulation and supervision of any public agency. An inten- tion to accomplish such an absurd result cannot be imputed to the Legis- lature. Johnson v. Commissioner of Public Safety, 355 Mass. 94, 99. On the other hand, to rule, as I do, that G. L. c. 164, § 105A governs all gas companies falling under its broad terms, irrespective of whether such companies are labelled "public" or "private," does not more than effec- tuate a "control which strongly tends to ensure protection of the public interest and which is within the statutory language." Boston Edison Company v. Sudbury, 1969 Mass. Adv. Sh. 1289, 1299. Accordingly, I conclude that the gas company you describe does not come within the purview of G. L. c. 148, § 37 but is subject to the provi- sions of G. L. c. 164, § 105A. Very truly yours, ROBERT H. QUINN Attorney General