Number 10 August 22, 1973

Number 10 August 22, 1973 Honorable John F. Kehoe, Jr. Commissioner of Public Safety 1010 Commonwealth Avenue Boston, Massachusetts 02215 Dear Commissioner Kehoe: You have requested my opinion on the question of whether the heads of municipal fire departments are obliged to carry out a directive from the State Fire Marshal requiring the certification of trucks carrying flammable liquids. Upon examining the applicable statutes and regula- tions, specifically G. L. c. 148 and FPR-7 (Rules and Regulations Gov- erning the Transportation of Flammable Liquids by Tank Vehicles, Pipe Lines or other Methods Within the Commonwealth), 1 conclude that local department heads are obliged to carry out such a directive. The duties of the Board of Fire Prevention Regulations of the De- partment of Public Safety are contained primarily in G. L. c. 148. The following sections have particular importance to the question you have asked. Chapter 148, § 9 provides in pertinent part as follows: "The board [of fire prevention regulations] shall make rules and regulations for the keeping, storing, use, manufacture, sale, handling, transportation or other disposition of . . . ex- plosive or inflammable fluids or compounds . . ." Chapter 148, § 10 provides in pertinent part as follows: ''The board of fire prevention regulations shall make, and from time to time may alter, amend and repeal, rules and reg- ulations relative to fire prevention which said board is au- thorized or required under any provision of this chapter to adopt or make ..." Chapter 148, § lOA provides in pertinent part as follows: "The head of the fire department in each city, town, or fire district shall grant, in accordance with the rules and regula- tions of the board, such permits for use in such city, town or fire district as may be required by such rules and regulations, and make such inspections therein, and have and exercise such powers and duties in connection therewith, as the marshal may direct." Under the provisions of G. L. c. 148, § 10, quoted above, it is clear that the duty to make rules and regulations relative to fire prevention in general, and under the provision of G. L. c. 148, § 9, quoted above, rules and regulations specifically relative to inflammable liquids, rests with the Board of Fire Prevention Regulations. In compliance with this statutory mandate, the Board has established rules and regulations gov- erning the transportation of flammable liquids by tank vehicles within the Commonwealth. These rules and regulations are contained in bulle- tin FPR-7. [Note: References in FPR-7 are to "flammable liquids"; re- ferences in G. L. c. 148 are to "Inflammable fluids"; Webster's Dic- tionary defines "flammable" as "capable of being easily ignited and of P.D. 12 65 burning with extreme rapidity — now used technically in preference to inflammable."] [For similar statutory interpretation of Fire Prevention Regulations see 1965-1966 Op. Atty. Gen. 332.] Section 4a of FPR-7 provides that no tank truck, as defined in section 1(a), shall be used to transport any flammable liquid (defined as Class A and Class B, section 2), unless the vehicle has been submitted for ap- proval to the State Fire Marshal and his approval is evidenced by the issuance of a certificate of approval. The provisions of section 4a are extended to other vehicles capable of carrying such liquids by succeed- ing sections 4b, 4c and 4d. The Regulations authorize the Marshal to ex- ercise wide authority in obtaining any information which he may deem necessary before the issuance of his certificate of approval. A physical inspection of any such vehicle is, in my opinion, wholly consistent with the purpose of the Regulations, and is analogous to the provision pro- vided in G. L. c. 148, § 4, for inspection of buildings and other premises. Realizing the potential hazards inherent in the transportation of flamma- ble liquids, the Board has promulgated these regulations to protect the safety of the public, and to maintain a system for determining the adequ- acy of vehicles to carry such liquids. The directive of the State Fire Marshal to all fire chiefs authorizes and directs them to biennially conduct the inspections and to issue certifi- cates of approval which are to be attached to any vehicle which meets the inspection standards. This certificate of approval is referred to as a "permit" under FPR-7, section 4 which states "The certificate of ap- proval herein provided for shall serve as a permit to transport flammable liquids for a period not to exceed two years." (Emphasis supplied.) This making of the inspection for the purpose of issuing the certificate is a process within the purview of section lOA, and as such falls within the scope of duties which can be delegated to heads of local fire depart- ments, in accordance with regulations of the Board. Furthermore, sec- tion lOA provides that the head of the local department "shall" make such inspections and exercise such powers and duties in that connection as the Marshal may direct. The local fire chiefs are also required to keep a record of every permit so issued, and may charge a fee of up to fifty cents for each permit issued. In my Opinion, this is a definite and binding directive to exercise the delegated powers in so far as the implementa- tion of the permit system is concerned. 1 intimate no opinion as to the Fire Marshal's powers in other situations, as no other facts are before me. For the above-stated reasons, 1 am of the opinion that the Board of Fire Prevention Regulations, in accordance with c. 148, §§ 9 and 10, has authority to make regulations governing the transportation of flammable liquids by tank vehicles within the Commonwealth. Further, heads of municipal fire departments are obliged to carry out the directive from the State Fire Marhsal requiring the certification of such tank vehicles carrying flammable liquids. Very truly yours, ROBERT H. QUINN Attorney General 66 P.D. 12