Helle v. Hightower

• Decision Date: 12 August 1987
• Docket Number: No. 3-86-130-CV,3-86-130-CV
• Citation: 735 S.W.2d 650
• Parties: Tommy HELLE, Appellant, v. Jim HIGHTOWER, Commissioner of the Department of Agriculture, et al., Appellees.
• Court: Texas Court of Appeals

Page 650

735 S.W.2d 650

Tommy HELLE, Appellant, v. Jim HIGHTOWER, Commissioner of the Department of Agriculture, et al., Appellees.

No. 3-86-130-CV.

Court of Appeals of Texas,

Austin.

Aug. 12, 1987.

Rehearing Denied Sept. 16, 1987.

Donald W. Allee, Edinburg, for appellant.

Jim Mattox, Atty. Gen., Ken Cross and Brian E. Berwick, Asst. Atty. Gen., Austin, for appellees.

Before SHANNON, C.J., and BRADY and ABOUSSIE, JJ.

SHANNON, Chief Justice.

Appellant, Tommy Helle, filed a declaratory judgment suit in the district court of Travis County pursuant to Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 12 (Supp.1987) ("APTRA"). By his suit, Helle sought a declaration concerning the validity of certain rules promulgated by appellees, the Texas Department of Agriculture and its Commissioner, Jim Hightower. The rules relate to the use and application of pesticides. After hearing, the district court rendered judgment declaring the rules valid. This Court will affirm the judgment.

Helle farms in Hidalgo County and the Department's rules affect his farming operation. After the Department proposed the rules, Helle and others appeared at public hearings and opposed the adoption of the rules. The Department, nonetheless, promulgated the rules which became effective in August 1985.

The rules in controversy may be found at 4 Tex.Admin.Code §§ 7.25-7.31 (1986). The content of those rules may be summarized as follows:

§ 7.25--sets out the scope and purpose of the rules and defines certain terms to be used in the rules;

§ 7.26--sets out circumstances under which certain affected persons may request prior notification of pesticide application and details methods by which the farm operator may notify;

§ 7.27--describes the duties of the farm operator in overseeing re-entry into fields by workers following application of pesticide;

§ 7.28--sets forth the warnings the farm operator must give to workers prior to re-entry into a field after pesticide application;

§ 7.29--forbids the application of pesticides when persons other than pesticide applicators are present in the field;

§ 7.30--prescribes the periods of time (known as "re-entry intervals") during which workers may not enter the fields after treatment with various kinds of pesticides;

§ 7.31--establishes standards for determining specific re-entry intervals for workers.

Helle's initial point is that the district court erred in declaring that Tex.Agric.Code Ann. § 76.104 (1982) empowered the Department to promulgate the rules. Section 76.104(b) provides:

Rules adopted in this section may:

(1) prescribe methods to be used in the application of a restricted-use or state-limited-use pesticide;

(2) relate to the time, place, manner, method, amount or concentration of pesticide application or to the materials used in pesticide application; and

(3) restrict or prohibit use of a restricted-use or state-limited-use pesticide in designated areas during specific periods of time.

This Court has concluded that § 76.104(b)(2) authorizes the Department's rules. Section 76.104(b)(2), on its face, clothes the Department with broad authority to adopt rules "rela[ting] to ... pesticide application...." No limiting language is found in § (b)(2) and as such, it is more expansive than §§ (b)(1) or (b)(3). The latter subsections are restricted specifically to regulation of special categories of pesticide--restricted-use ¹ and state-limited-use. ² Furthermore, §§ (b)(1) and (b)(3) provide a narrow, special range of rulemaking responsibility. Subsection (b)(1) allows the agency only to "prescribe methods" for pesticide application, while § (b)(3) speaks only of restricting or prohibiting use of pesticides in the designated categories.

In contrast, § 76.104(b)(2) provides that rules promulgated thereunder need only "relate" to wide-ranging aspects of pesticide application in general, not solely to application of the restricted categories of pesticide. It appears plain that the words "restricted-use and state-limited-use" were purposefully omitted from § (b)(2), given the difference in breadth between the two subsections relating to restricted pesticides, and the subsection relating to "pesticide application" in general. Moreover, since § (b)(1) gives the agency power to prescribe "methods" for application of restricted pesticides, it would be redundant again to place the word "method" in § (b)(2), unless that section covered a different group of pesticides.

Helle suggests that the terms of Tex.Rev.Civ.Stat.Ann. art. 135b-5a § 16 (§ 76.104 before codification) demonstrate clearly an intent by the legislature to regulate only restricted-use and state-limited-use pesticides. Section 16 provided:

The head of each state agency with responsibility for certification of pesticide applicators, as provided in Section 15 of this Act, may after due notice and a public hearing, promulgate regulations to carry out the provisions of this Act for which he is responsible. The regulations may prescribe methods to be used in the application of restricted-use and state-limited-use pesticides. Regulations may relate to the time, place, manner, methods, and amounts and concentrations of pesticide application and to the materials used in pesticide application, and may restrict or prohibit use of restricted-use and state-limited-use pesticides in designated areas during specified periods of time. Regulations shall be promulgated only after consideration of precautions or restrictions necessary to prevent unreasonable adverse effects on the environment.

The contention is without merit as perusal of § 16 reveals no substantive differences from § 76.104.

Much of Helle's argument under this point of error is devoted to a discussion of his analysis of the legislative history of § 76.104. If a statute is plain and unambiguous, there is no need to resort to the rules of construction. Ex Parte Roloff, 510 S.W.2d 913 (Tex.1974); Fox v. Burgess, 157 Tex. 292, 302 S.W.2d 405 (1957). Because this Court is of the opinion that § 76.104(b)(2) is plain and unambiguous, the rules of construction advanced by Helle are inappropriate for our consideration.

By his second point of error, Helle contends that the district court erred in concluding that the Department "complied with all statutory and procedural requirements in adopting the rules and regulations in question." Helle first suggests that the rules are invalid because the Department failed to comply with § 76.104(c). Section 76.104(c) provides that:

A regulatory agency may adopt a rule under this section only after consideration of precautions or restrictions necessary to prevent unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of the pesticide.

Helle's primary argument is that the Department failed to properly "account [for] the economic, social, and environmental costs" involved. In particular, Helle claims that the Department promulgated the re-entry intervals in the absence of "hard" data, specific to each pesticide, showing that the risk imposed by a particular pesticide justified such a re-entry interval.

Section 76.104(c) provides no specific method by which the Department must weigh the competing considerations involved in pesticide regulation. The failure of the Department to generate its own pesticide-specific toxicity studies does not necessarily mean that the Department did not account for the danger to workers posed by the pesticide. Helle's attack, in this regard, appears more of a challenge to the reasonableness of the Department's conclusions and not so much to its method in coming to those conclusions.

There is proof indicating that the Department did account, in some manner, for the risks imposed by the various categories of pesticides. Both parties agree that the danger of "acute intoxication" through exposure to certain pesticides was well documented, and the Department relied on this information in imposing a twenty-four hour re-entry interval on pesticides designated "Toxicity Category 1" by the EPA. § 7.30(c)(1). The Department also acknowledged that California and North Carolina had already imposed such an interval. In the case of the forty-eight hour re-entry interval, § 7.30(c)(2), some of the pesticides listed were already so restricted by the EPA, 40 C.F.R. § 170.3 (1986), and "most" of the others were similarly restricted in California. The Department looked to the treatment these pesticides received in California and in other states, as well as examining "illness information" and acute toxicity information.

The final category in dispute, a rebuttable twenty-four hour re-entry interval for all pesticides in use, was likewise not created in a vacuum. Rather than acute health risks, this category was designed especially to prevent chronic health risks. The Department resorted to general literature posing the danger of suspected adverse chronic health effects and more specific information concerning the possibility that chronic exposure to some of these untested pesticides could cause cancer. Accordingly, even in the absence of comprehensive specific toxicity data concerning chronic health effects, the Department did "account" for the dangers to health posed by the pesticides. Contrary to Helle's suggestion, the statute does not require that each pesticide be individually tested.

Helle further argues that there was "no meaningful assessment of economic costs" prior to the promulgation of the rules. There is proof, however, that the Department "accounted" for the economic costs and benefits of the rule. Department economist Heather Ball testified extensively to the procedures she followed in working up the economic costs to farmers of the prior notification, field posting, and protective clothing requirements imposed by the rules. Department counsel Sam Biscoe also testified that the Department considered the economic analysis provided by the farmers'...