Organized Migrants in Community Action, Inc. v. Brennan

• Decision Date: 09 October 1975
• Docket Number: No. 74-2062,74-2062
• Citation: 520 F.2d 1161,172 U.S.App.D.C. 147
• Parties: , 172 U.S.App.D.C. 147, 5 Envtl. L. Rep. 20,681, 3 O.S.H. Cas.(BNA) 1566, 1975-1976 O.S.H.D. ( 20,058 ORGANIZED MIGRANTS IN COMMUNITY ACTION, INC., Appellant, Elizabeth Wilder et al. v. Peter BRENNAN, Secretary, Department of Labor, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1161

520 F.2d 1161

8 ERC 1442, 172 U.S.App.D.C. 147, 5

Envtl. L. Rep. 20,681,

3 O.S.H. Cas.(BNA) 1566,

1975-1976 O.S.H.D. ( 20,058

ORGANIZED MIGRANTS IN COMMUNITY ACTION, INC., Appellant, Elizabeth Wilder et al. v. Peter BRENNAN, Secretary, Department of Labor, et al.

No. 74-2062.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 26, 1975.

Decided Oct. 9, 1975.

Patricia A. Butler, with whom Florence Wagman Roisman and Miriam Guido, were on the brief for appellants.

Stephen F. Eilperin, Atty., Dept. of Justice, with whom Carla A. Hills, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Michael H. Levin, Washington, D. C., Counsel for App. Litigation, Dept. of Labor, were on the brief for Federal appellees. Barbara L. Herwig, Atty., Dept. of Justice, also entered an appearance for Federal appellees.

Before TAMM and LEVENTHAL, Circuit Judges, and MILLER, ^* JudUnited States Court of Customs and Patent Appeals.

Opinion for the Court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

This case involves an alleged conflict of legislation; we must determine whether jurisdiction to regulate farmworkers' exposure to pesticides is vested in the Department of Labor or in the Environmental Protection Agency. Appellants Organized Migrants In Community Action, et al. ¹ claim that jurisdiction lies with the Department of Labor and that the Secretary must issue regulations pursuant to his authority under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq. (1970). Appellees Secretary of Labor and Administrator of the Environmental Protection Agency maintain that the Environmental Protection Agency (EPA), which has already issued such regulations pursuant to the Federal Environmental Pesticide Control Act of 1972, 7 U.S.C. §§ 136 et seq. (Supp. III 1973) (FEPCA), has properly exercised its jurisdiction. They claim that the Administrator's actions have eliminated the jurisdiction of the Secretary of Labor. District Judge Hart, by ruling favorably on appellees' 12(b)(6) motion, confirmed the latter view. We agree and hold that EPA has the authority to promulgate rules regulating farmworker exposure to pesticides and by so doing has preempted the Secretary of Labor from acting.

I

In 1970, Congress passed the Occupational Safety and Health Act (OSHA), legislation whose purpose was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . . ." 29 U.S.C. § 651. To accomplish this, the Secretary of Labor was given broad authority to promulgate occupational safety and health standards to protect workers exposed to hazards in their employment. See id. at §§ 652(8), 654, 655. However, Congress recognized that the Secretary's broad authority under OSHA might conflict with other agencies that regulated occupational health and safety. Therefore, section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1), provides that:

Nothing in this (Act) shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

See Subcommittee on Labor, Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 at 997 (Comm. Print 1971) (hereafter Comm. Print). This provision lies at the heart of the current controversy.

This controversy began on May 1, 1973, when, pursuant to 29 U.S.C. § 655(c) of OSHA, the Secretary issued an emergency temporary standard for twenty-one organophosphate pesticides. ² The standard set field re-entry times the interval after the application of a pesticide before the expiration of which it is unsafe to enter the field and to come into contact with the vegetation and served as a proposed rule for the promulgation of a permanent standard. Once the Secretary issued an emergency temporary standard, he was required by section 655(c) to promulgate a permanent standard within six months thereafter. ³ Two months after the Secretary of Labor issued his temporary emergency standard, the Environmental Protection Agency formally expressed an intent to regulate farmworker exposure to pesticides. ⁴

Appellants filed this action in district court on January 11, 1974, after the Secretary failed to issue a permanent standard within six months of the issuance of the temporary emergency standard. They sought a declaratory judgment and a mandatory injunction directing the Secretary to issue a permanent standard. ⁵ Subsequently, upon learning from a draft memorandum of agreement between EPA and the Department of Labor, see App. at 10, that EPA would have primary responsibility for establishing occupational health and safety standards with respect to pesticides, appellants amended their complaint to include the Administrator of EPA and sought additional relief in the form of a declaration that the proposed transfer of responsibility to EPA was in violation of OSHA and an injunction prohibiting the transfer.

On March 11, 1974, EPA published a proposed standard prescribing worker re-entry times into fields treated with pesticides. 39 Fed.Reg. 9457 (1974). EPA issued its final standard on May 10, 1974. 39 Fed.Reg. 16888 (1974). On June 12, 1974, appellees moved to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted, maintaining that the Secretary of Labor was precluded by section 4(b)(1) of OSHA from issuing regulations in light of EPA's actions. Appellants moved for summary judgment, claiming that the Secretary was not preempted from issuing regulations to control farmworker exposure to pesticides and, indeed, was obligated to do so. Appellees, then, cross-moved for summary judgment, again claiming that the Secretary could not issue such regulations. After a hearing, District Judge Hart granted appellees' motion to dismiss and appellants appealed.

On appeal, appellants argue that the Secretary of Labor was not precluded from issuing regulations to protect farmworker exposure to pesticides because EPA did not have statutory authority to issue such regulations and because Congress did not intend to preempt OSHA jurisdiction by enacting FEPCA. We consider these contentions seriatim.

II

Appellants first argue that EPA did not preempt the Secretary of Labor from issuing regulations to protect farmworkers from occupational exposure to pesticides because EPA does not possess "statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." 29 U.S.C. § 653(b)(1). Recognizing that EPA claims its authority from the Federal Environmental Pesticide Control Act, appellants assert that a "careful scrutiny of the statutory language demonstrates that (FEPCA) was not written to regulate employee health or safety. Furthermore, the legislative history of its enactment illustrates the fact that it was not intended to do so." Appellant's Br. at 9.

We find appellants' "careful" reading of FEPCA entirely unpersuasive; it ignores significant parts of the Act and its legislative history. Our own analysis of the statute and its legislative history confirms EPA's ample statutory authority to issue field re-entry standards to protect farmworkers.

FEPCA is a comprehensive revision of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 135 et seq. (1970). While FEPCA retains the character of its predecessor, it contains a number of innovations to direct and strengthen federal control over pesticides. FEPCA makes clear that the purpose of federal pesticide regulation is to protect man and his environment, see 7 U.S.C. § 136(bb), and it extends the reach of the federal power to include intrastate activities that affect commerce. See id. at § 136a(a). Significantly for our purposes, FEPCA, for the first time, regulates pesticide use, and makes misuse civilly and criminally punishable. See id. at 136j, l.

FEPCA retains pesticide registration and labeling as its key mechanisms. The Act requires pesticides to be registered with the EPA, 7 U.S.C. § 136a, j, once the Administrator finds that:

(A) its composition is such as to warrant the proposed claims for it;

(B) its labeling and other material required to be submitted comply with the requirements of (the Act);

(C) it will perform its intended function without unreasonable adverse effects on the environment; and

(D) when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.

Id. at § 136a(c)(5). Notably, "unreasonable adverse effects on the environment" is defined in the Act as "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." Id. at § 136(bb) (emphasis added).

When registering a pesticide, the Administrator may classify it or certain of its uses as restricted where he finds that its use "may generally cause, without additional regulatory restrictions, unreasonable adverse effects on the environment, including injury to the applicator . . .." Id. at § 136a(d)(1) (C). Where a pesticide is classified as restricted because it is toxic to the applicator, it must be applied "by or under the direct supervision of a certified applicator." ⁶ 7 U.S.C. § 136a(d)(1)(C)(i). If the pesticide is restricted because of potential harm to the environment, a certified applicator must apply or supervise the pesticide's application, and the Administrator may impose additional restrictions by regulation. Id. at § 136a(d)(1)(C)(ii).

The labeling requirements of the Act also provide a significant measure of protection. As noted above, the Administrator must determine that a pesticide will be properly labeled before its registration, and the Act makes it unlawful to...