Washington State Farm Bureau v. Marshall

• Decision Date: 13 August 1980
• Docket Number: No. 79-4449,79-4449
• Citation: 625 F.2d 296
• Parties: 24 Wage & Hour Cas. (BN 951, 89 Lab.Cas. P 33,926, 1980 O.S.H.D. (CCH) P 24,890 WASHINGTON STATE FARM BUREAU, Oregon State Farm Bureau and Horticultural Ass'n of Western Washington, Plaintiffs-Appellees, v. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 296

625 F.2d 296

24 Wage & Hour Cas. (BN 951, 89 Lab.Cas. P 33,926,

1980 O.S.H.D. (CCH) P 24,890

WASHINGTON STATE FARM BUREAU, Oregon State Farm Bureau and Horticultural Ass'n of Western Washington, Plaintiffs-Appellees, v. Ray MARSHALL, Secretary of Labor, United States Department

of Labor, Defendant-Appellant.

No. 79-4449.

United States Court of Appeals, Ninth Circuit.

Submitted March 5, 1980.

Decided Aug. 13, 1980.

Dorianne Beyer, New York City, Ronald G. Whiting, Washington, D.C., argued for defendant-appellant; Kerry L. Adams, Atty., Dept. of Labor, Washington, D.C., on brief.

Jerome F. McCarthy, Tacoma, Wash., for plaintiffs-appellees.

Diane B. Cohn, William B. Shultz, Robert B. Stulberg, Washington, D.C., amici curiae.

Appeal from the United States District Court for the Western District of Washington.

Before TANG, SCHROEDER and POOLE, Circuit Judges.

POOLE, Circuit Judge.

This appeal from the grant of a permanent injunction against the Secretary of Labor presents questions concerning the interpretation and application of an amendment to the Fair Labor Standards Act (FLSA), 29 U.S.C.A. § 213(c)(4)(A) (1979), authorizing the Secretary to waive restrictions on employment of 10 and 11 year-olds in short-season agriculture harvesting under specified conditions. One such condition requires employers seeking the waivers to submit objective data to the Secretary demonstrating that the type and level of pesticides and chemicals used on the crops would not have an adverse effect on the health and well-being of the children employed. 29 U.S.C.A. § 213(c)(4)(A) (iii). The district court invalidated certain rules issued by the Secretary in implementing this provision and enjoined him from refusing to grant waivers to Washington and Oregon berry growers using the pesticides ¹ Captan and Benomyl. Because the court relied upon erroneous legal conclusions, improperly substituted its judgment for the Secretary's and abused its discretion in issuing the permanent injunction, we reverse.

I. FACTUAL BACKGROUND

Prior to 1974, exceptions to the child labor provisions of FLSA permitted limited employment of children under the age of 16 in agriculture. See 29 U.S.C. § 213(c) (prior to 1974 amendments). 1974 amendments to the Act prohibited virtually all employment of children under age 12 in subject agricultural employment. Pub.L.No. 93-259, 88 Stat. 55 (amending 29 U.S.C. § 213(c)(1)). In 1977 Congress amended the provisions so as to authorize the Secretary of Labor to issue waivers permitting the employment of 10 and 11 year-olds as hand harvesters for short-season crops. 29 U.S.C.A. § 213(c)(4) (1979), as amended by Fair Labor Standards Amendments of 1977, Pub.L.No. 95-151, § 8, 91 Stat. 1245. The granting of any such waiver was conditioned, however, upon the Secretary's finding, based on objective data submitted by the applicant, that "the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of the individuals to whom the waiver would apply." 29 U.S.C.A. § 213(c)(4)(A)(iii) (1979). ²

The Department of Labor's Wage and Hour Division (hereinafter "the agency") ³ proceeded to implement the waiver provision by promulgating rules, and on April 4, 1978, a proposed rule was promulgated regarding the pesticide condition which required employers to identify for each farm or field in which minors would be employed under the waiver:

"The standards of EPA, OSHA, NIOSH, ⁴ or other comparable authority which establish that each field so treated with the identified chemical and/or pesticide will not adversely affect the health or well-being of minors who will enter such field . . ." 43 Fed.Reg. 14068, 14070 (April 4, 1978) (proposed 29 C.R.F. § 575.5(d)(2)).

During the comment period on the proposed rule pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 553, testimony and other information received indicated that currently established EPA and other federal standards had not been shown to be safe for children of ages 10 and 11. An EPA official informed the agency that EPA's standards for the reentry of agricultural workers after application of pesticides had been established for adults, not for pubescent children, and that EPA could not establish any safe reentry times for 10 and 11 year-olds on the present state of its knowledge. In the light of these comments, the agency published a final rule on June 21, 1978, which provided that to satisfy the pesticide conditions applicants:

"will either have to submit a statement that no pesticides or other chemicals were used on the crop to be harvested or submit data which upon study by the Secretary or the Secretary's designee establishes safe reentry times for 10 and 11 year olds."

43 Fed.Reg. 26562, 26567 (June 21, 1978); 43 Fed.Reg. 27466, 27470 (June 23, 1978); 29 C.F.R. § 575.5(d) (1978).

This final rule was published after the start of the 1978 berry harvest. Upon the application of appellees, the district court granted a preliminary injunction preventing the Secretary from enforcing the above restrictions against those growers who had filed or applied for waivers all of which had been denied.

In an effort to arrive at safe reentry intervals for 10 and 11 year-old harvesters, the agency commissioned Clement Associates, pesticide and toxicology specialists, to review data on chemicals used by the affected growers. Clement reviewed the scientific literature for about 30 chemicals and recommended a "Minimum Entry Time" (MET) for certain chemicals. MET is the minimum period after the crop is treated with the pesticide before field workers would be permitted to enter the field to harvest the crop or perform other work. Clement's recommendations were based primarily on EPA's "Preharvest Intervals" the minimum periods of time after the crop is treated before it may be harvested for consumption ⁵ with an added safety factor for children. Clement Associates, Inc., Safety Factors for Children Employed as Harvesters of Strawberries in Washington and Oregon 3, 16-17 (August 7, 1978) (hereinafter cited as Clement First Report).

On August 18, 1978, based on the Clement studies (but without providing notice and comment procedures), the agency published a final rule establishing a list of pesticides or chemicals determined not to have an adverse effect on the health or well-being of minors employed under a waiver if specified "preharvest intervals" were observed. 43 Fed.Reg. 36623 (August 18, 1978), amending 29 C.F.R. § 575.5(d). ⁶ Intervals were established for the use of eight chemicals on strawberries and 17 chemicals on potatoes. The intervals were three days between treatment and entry for Captan and two days for Benomyl. ⁷

Nine months later, on April 13, 1979, the agency published another final rule which deleted Captan from the approved list for strawberries because it and another chemical had been identified as suspended carcinogens. 44 Fed.Reg. 22059 (April 13, 1979), amending 29 C.F.R. § 575.5(b)(2). The agency found that "with respect to 10 and 11 year-old minors exposed to carcinogenic substances, reentry times cannot be set for assurance of safety;" therefore, use thenceforth of those chemicals would preclude the issuance of a waiver. Id. at 22060-61; 29 C.F.R. § 575.5(d)(4) (1979). The deletion of Captan was based on another study by Clement which had concluded that no reentry interval for Captan would give the children reasonable assurances of safety. Clement Associates, Inc., Captan, p. 5 (March 20, 1979); Interim Review of the Carcinogenicity of Five Pesticides 1, 14-16 (March 30, 1979). In late March 1979, shortly after the new Clement recommendation was received, a Labor Department official informed Oregon and Washington berry growers of the problem with Captan; however, no formal notice and comment procedure was followed before publication of this rule.

On April 24, 1979, another final rule shifted Benomyl from the approved METs list to a list of pesticides or chemicals which "have been preliminarily reviewed by the Secretary or the Secretary's designee" but for which "there does not appear to be sufficient scientific data upon which to base minimum entry times." 44 Fed.Reg. 24058, 24060 (April 24, 1979), amending 29 C.F.R. § 575.5(d)(5).

An applicant for a waiver to use chemicals on that list would have to submit data which established safe reentry times for 10 and 11 year-olds. Id. Benomyl was included because of scientific evidence that it "is moderately or highly persistent in soil or on foliage and has serious toxic effects." 44 Fed.Reg. at 24059. Clement's second studies had learned of tests establishing Benomyl as a mutagen and a teratogen ⁸ with effects on reproductive development. Clement Associates, Inc., Safety Factors for Children Employed as Hand Harvesters of Strawberries and Potatoes: Final Preliminary Report 15, 38 (April 20, 1979) and Final Report 44-47 (May 18, 1979). As with Captan, the deletion of Benomyl was preceded by communication with the growers but without formal notice and comment procedure.

Appellees then sued in the district court seeking a declaration that the rules "banning" Captan and Benomyl were void and a mandatory injunction directing the Secretary to issue waivers to the growers who complied with the August 18, 1978 rule. ⁹ The district court issued a preliminary injunction, which this Court vacated pursuant to an emergency appeal.

The district court then held a trial on the merits. The Clement consultants and other witnesses supported the agency's actions, while the growers' expert witness disputed key assumptions and conclusions of the Clement Reports. The court weighed the evidence and determined issues of credibility. It found the grower's expert to be more credible than the Secretary's witness. It decided that a waiver applicant could meet its statutory burden by showing that the post-spraying intervals, after which harvest workers are...