489 F.2d 120 (5th Cir. 1974), 73-1934, Florida Peach Growers Association, Inc. v. United States Departmaent of Labor

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation489 F.2d 120
Docket Number73-1934.
PartiesFLORIDA PEACH GROWERS ASSOCIATION, INC., Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Peter J. Brennan, Secretary of Labor, and John H. Stender, Assistant Secretary of Labor for Occupational Safety and Health, Respondents.* *Consolidated with: Florida Citrus Production Managers Association Flo v. U.S. Department of Labor, 73-2279; Washington S
Date09 January 1974

Page 120

489 F.2d 120 (5th Cir. 1974)

FLORIDA PEACH GROWERS ASSOCIATION, INC., Petitioner,

v.

UNITED STATES DEPARTMENT OF LABOR, Peter J. Brennan, Secretary of Labor, and John H. Stender, Assistant Secretary of Labor for Occupational Safety and Health, Respondents.*

*Consolidated with:

Florida Citrus Production Managers Association

Flo

v.

U.S. Department of Labor, 73-2279; Washington State

Horticultural Association

v.

Brennan, 73-2283; Idaho

Horticultural Society

v.

Brennan, 73-2327; American Farm Bureau

Federation

v.

Brennan, 73-2493; Massachusetts Fruit Growers

Association

v.

Brennan, 73-2513; Michigan State Horticultural

Society

v.

Brennan, 73-2518; North Carolina Apple Grower's

Association

v.

Brennan, 73-2622; National Peach Council

Bre

v.

Brennan, 73-2623; Raza Association of Spanish Surnamed

Americans

v.

U.S. Department of Labor, 73-2690; New York State

Wine Grape Growers Association

v.

Brennan, 73-2734; Virginia

Farm Bureau

v.

Brennan, 73-2795; Pennsylvania State

Horticultural Society

v.

Brennan, 73-2871; Colorado Apple

Administrative Committee

v.

Brennan, 73-2948.

No. 73-1934.

United States Court of Appeals, Fifth Circuit.

January 9, 1974

Page 121

John D. Conner, Sellers, Conner & Cuneo, Washington, D.C., R. Emmett Kerrigan, New Orleans, La., Lawrence B. Lindemer, Lansing, Mich., Douglas C. Nohlgren, Chicago, Ill., Allen A. Lauterbach, Park Ridge, Ill., John A. Paterracki, Jr., New York City, Joseph C. Russell, Richmond, Va., Winston S. Howard, Denver, Colo., for petitioner.

Peter J. Brennan, Sec. of Labor, John H. Stender, Asst. Sec. of Labor, William J. Kilberg, Sol. of Labor, U.S. Dept. of Labor, Walter H. Fleischer, Eloise E.

Page 122

Davies, Dept. of Justice, Washington, D.C., for respondents.

Miriam Guido, Migrant Legal Action Program, Inc., Washington, D.C., Joanne B. Stern, Patricia Butler, National Health Law Program, Los Angeles, Cal., David Lillesand, Camden Regional Legal Services, Bridgeton, N.J., Joseph C. Segor, Migrant Services Foundation, Homestead, Fla., Burton D. Fretz, Santa Maria, Cal., for intervenors.

Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.

RONEY, Circuit Judge:

This case comes to the Court of Appeals on petitions to set aside an emergency temporary standard issued pursuant to the Occupational Safety and Health Act of 1970 (OSHA) 1 by the Assistant Secretary of Labor for Occupational Safety and Health 2 affecting the cultivation of seven crops: apples, peaches, grapes, oranges, grapefruit, lemons, and tobacco. The standard, designed to protect farmworkers from exposure to residues on foliage of named organophosphorous pesticides, does not prohibit the use of such chemicals, but fixes the period during which an employee may not enter a sprayed area and requires other employee oriented controls.

In No. 73-2690, certain organizations representing farmworkers (hereinafter the Farmworkers) petition us to set aside only amendments to an original standards first adopted and then changed by the Secretary, on the ground that statutory procedures for amendment were not followed. The remaining petitions, all filed by representatives of food growers (hereinafter the Growers) seek to set aside the standard, both in its original form and as amended, on the ground that there is no substantial evidence to support the promulgation of an emergency standard.

OSHA is a new act and the Occupational Safety and Health Administration in the Department is a new agency. The consequent dearth of definitive decisions which might guide the Act's application, requires us to do more than merely review the challenged standard. We must determine first, the procedures by which an emergency temporary standard may be amended; second, the standard by which the action of the Secretary will be reviewed; 3 and third, the merits of the argument that the order should be set aside. This third facet of our task turns on whether there is a 'grave danger' to the workers upon which to posit emergency remedial standards.

The Emergency Temporary Standard

The Secretary first published the 'Emergency Temporary Standard for Exposure to Organophosphorous Pesticides' on May 1, 1973. An amended version was published on June 29. 4 As amended, the standard

Page 123

(1) defines the seven crops and twelve pesticides covered; (2) precludes employers from allowing application of a controlled pesticide to any land on which one or more of the covered crops are grown unless all employees, other than applicators, have been removed from the area; (3) establishes for each crop and pesticide combination a 'field reentry safety interval' during which employees who might have substantial contact with foliage may not be permitted to enter treated areas without protective clothing and equipment; 5 (4) requires employers to warn, bilingually if necessary, employees expected to work in a treated area prior to the expiration of the reentry interval, either orally or by posting signs around the area or notices where the employees usually assemble for instructions, and that records of all warnings be kept; (5) requires employers to provide protective clothing and equipment which meet designated specifications; (6) sets standards for cleaning and care of the protective gear; (7) prescribes sanitation measures, including employer furnished changing facilities (separate from those used for other purposes) with individual clothing storage for each employee and separate storage for pesticide contaminated clothing and equipment, an adequate supply of potable water for emergency washing purposes, and a requirement that employers not permit employees to store or consume food or drink where the food or drink may be exposed to pesticides; and (8) requires employers to make arrangements to provide necessary medical assistance to employees who may suffer injuries or illness as a result of occupational exposure to pesticides and to instruct crew leaders in recognition of early symptoms of organophosphate poisoning and appropriate countermeasures.

The Statutory Scheme

Standards promulgated under OSHA have the force of law because Section 5 of the Act, 29 U.S.C.A. § 654, imposes upon every employer 6 a duty to

Page 124

'comply with occupational safety and health standards promulgated under this chapter' or face civil and criminal penalties set forth in section 17, 29 U.S.C.A. § 666.

The Secretary may promulgate standards in either of two 7 ways as emergency temporary standards or as occupational safety and health standards, the so-called permanent standards.

An emergency temporary standard, such as that under review here, may be issued without regard to the notice, public comment and hearing provisions of the Administrative Procedure Act. Subsection 6(c) of OSHA provides that

[t]he Secretary shall provide, without regard to the requirements of chapter 5 of Title 5 (notice, public comment, and hearing provisions of the APA), for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.

29 U.S.C.A. § 655(c)(1). The key to the issuance of an emergency standard is the necessity to protect employees from a grave danger. After issuing an emergency temporary standard, the Secretary must set in motion the procedures for promulgation of a permanent standard, which must issue within six months of the emergency standard's publication. 29 U.S.C.A. § 655(c)(3).

By contrast, a permanent standard may be issued in order to serve the objectives of OSHA and requires procedures similar to informal rulemaking under the Administrative Procedure Act, 5 U.S.C.A. § 553. Upon determination that a rule should be issued promulgating such a standard, the Secretary must proceed under subsection (b) of OSHA § 6, 29 U.S.C.A. § 655(b). A subsection (b) proceeding requires that a proposed standard be published in the Federal Register. Publication is followed by a 30-day period during which interested persons may submit written data or comments or file written objections and requests for a public hearing on the proposed standard. If a hearing is requested, the Secretary is to publish in the Federal Register a notice specifying the standard objected to and setting a time and place for the hearing. Within 60 days after the period for filing comments, or, if a hearing has been timely requested, within 60 days of the hearing, the Secretary may either issue a rule promulgating an occupational safety and health standard or determine that no such rule should be issued. 29 U.S.C.A. § 655(b). The same section and procedure also govern modification and revocation of occupational safety and health standards.

Whenever the Secretary promulgates a standard he must include 'a statement of reasons for such action' in the Federal Register. 29 U.S.C.A. § 655(e). The requirement has been held to apply to emergency temporary standards. Dry Color Manufacturers' Association v. Department of Labor, 486 F.2d 98 (3d Cir. 1973).

The difference between these two types of standards is of critical importance on this review. Growers stress that the record does not support the need for subsection (c) emergency standards, leaving open all questions which might relate to a review of permanent standards. Farmworkers contend that emergency temporary standards may be modified only through following the subsection (b) permanent standard procedures.

Page 125

The Factual Background

The emergency temporary standard now under review enjoyed a troubled gestation period. In Fall 1971, the Task...

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    ...to workers, as opposed to easily curable and fleeting effects on their health.'' Fla. Peach Growers Ass'n, Inc. v. U. S. Dep't of Labor, 489 F.2d 120, 132 (5th Cir. 1974). Although the findings of grave danger and necessity must be based on evidence of ``actual, prevailing industrial condit......
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    ...easily curable and fleeting effects on their health." 86 FR at 23280 quoting Fla. Peach Growers Ass'n, Inc. v. U.S. Dep't of Labor, 489 F.2d 120, 132 (5th Cir. 1974). OSHA begins by discussing the nature of the disease, including its health and "other adverse effects", includ......
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    ...task in a manner reasonable under the state of the record before (it)." Florida Peach Growers Ass'n v. United States Dep't of Labor, 489 F.2d 120, 129 (5th Cir. The task of review first requires a look to the statute and legislative intent to determine the criteria necessary to establi......
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