Rios v. WASH. DEPT. OF LABOR AND INDUSTRIES

• Decision Date: 07 February 2002
• Docket Number: No. 70294-2.,70294-2.
• Court: Washington Supreme Court
• Parties: Juan RIOS and Juan Farias, individually and on behalf of all others similarly situated, Respondents, v. WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES and Gary Moore, in his official capacity of Director of the Washington Department of Labor and Industries, Petitioners.

39 P.3d 961

145 Wn.2d 483

145 Wash.2d 483

Juan RIOS and Juan Farias, individually and on behalf of all others similarly situated, Respondents, v. WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES and Gary Moore, in his official capacity of Director of the Washington Department of Labor and Industries, Petitioners.

No. 70294-2.

Supreme Court of Washington, En Banc.

February 7, 2002.

Robert. Gibbs, Seattle, Chadbourne & Parke, David M. Raim, Tracey Laws, M. Katherine Montgomery, Washington, DC, amicus curiae.

Christine Gegoire, Atty. Gen., Elliott S. Furst, Asst., Olympia, for Petitioners.

Todd Dale True, Daniel Ford, John Matthew Geyman, Sean M. Phelan, Seattle, for Respondents.

OWENS, J.

At issue in this case is whether the Court of Appeals properly concluded that the Washington Department of Labor and Industries (the Department) had violated a statutory duty to promulgate a rule requiring mandatory blood testing for agricultural pesticide handlers. Although the Court of Appeals acknowledged that differing standards of review applied to the Department's rulemaking in 1993 and its denial of rulemaking in 1997, it did not review the two challenges separately. We agree with the Department that the plaintiffs failed to show that the 1993 rule was arbitrary and capricious. However, we have determined that the Department's denial of the plaintiffs' 1997 request was arbitrary in light of the Department's post 1993 investigation, and we therefore conclude that the Department's failure to act was contrary to the requirements of the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW.

The Court of Appeals decision is therefore affirmed in part and reversed in part. We remand this matter to the Department with our order to initiate rulemaking.

FACTS

The plaintiffs in this class action lawsuit are agricultural pesticide handlers, farm workers directly engaged in mixing, loading, and applying pesticides. Because exposure to pesticides containing organophosphate and carbamate compounds is known to inhibit levels of cholinesterase, a blood enzyme essential to the proper functioning of the nervous system,¹ the pesticide handlers asked the Department in 1986 and again in 1991 to adopt a mandatory blood testing program to monitor their cholinesterase levels. The Department initiated rulemaking and, in March 1993, adopted WAC 296-307-14520 (originally codified as WAC 296-306-40011 (1993)),² which recommends but does not require a blood testing program for monitoring cholinesterase levels. Stephen M. Cant, the Department's "industrial hygiene program manager," "made the initial decision not to require mandatory cholinesterase monitoring, and the Assistant Director for WISHA and the Director for the Department accepted that recommendation." Clerk's Papers (CP) at 508, 516.

The pesticide handlers informed the Department that they intended to seek judicial review. In response, the Department set up a Technical Advisory Group (TAG) "to assist the Department ... in determining an appropriate response" and "to identify the essential components of a successful monitoring program in Washington State." CP at 273. The TAG, comprised of three health care professionals from the University of Washington, along with two representatives from the Department, completed a 20 page report in August 1995. See CP at 271-91. Although the heading to section II of the TAG report termed cholinesterase monitoring "the most well developed and feasible method among available worker monitoring approaches for cholinesterase-inhibitor exposure," the TAG "recommend[ed] the following" in its September 1995 cover letter to the report: "Cholinesterase monitoring on a voluntary basis for those working in occupations involved with handling cholinesterase-inhibiting pesticides within the specific trigger levels described in this document." CP at 274, 202. The TAG explained that, "[g]iven the current limitations of various resources vital for the implementation of some of the recommendations described in this document, we are not advising mandatory cholinesterase monitoring programs." CP at 202.

In letters dated June 19 and July 18, 1997, the pesticide handlers' counsel asked the Department to "state its intent to adopt a mandatory medical monitoring rule for pesticide handlers." CP at 492. Michael Silverstein, the Department's Assistant Director for industrial safety and health, responded by letter of August 29, 1997. Silverstein explained that "[t]he primary rationale for not making ChE [(cholinesterase)] monitoring mandatory at this time grows out of the technical limitations involved with ChE testing," CP at 215, but he also discussed the constraints placed on the Department by competing priorities and limited resources. While Silverstein concluded that the Department had correctly decided in 1993 to recommend nonmandatory cholinesterase monitoring and had properly adhered to the voluntary recommendations in light of the 1995 TAG report, he nevertheless recognized "that additional review of technical issues related to cholinesterase monitoring was warranted both in light of the Technical Advisory Group advice to this effect, and also in light of the Governor's Executive Order on Regulatory Improvement (EO 97-02)." CP at 493. Consequently, the Department included "the voluntary monitoring recommendations in the Rule Review Plan ... submitted to the Governor in August 1997." Id.

The pesticide handlers filed the present declaratory judgment action in October 1997 in Thurston County Superior Court. CP at 5-15. They stated causes of action for the Department's alleged violation of WISHA, RCW 49.17.050(4) and 49.17.240(2); the Washington Administrative Procedure Act (APA), RCW 34.05.570(4)(b) and 34.05.570(2)(c); the Washington Law Against Discrimination, RCW 49.60.030; article I, section 12 of the Washington State Constitution; and Title VI of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000d. In January 1998, the case was certified as a class action on behalf of "all persons who are or will be employed as pesticide handlers in the agriculture industry in Washington State." CP at 21. At a bench trial in June 1998, the trial court issued an oral ruling based on the oral argument of counsel, the testimony from witnesses, and "the rule-making file required by RCW 34.05.370, as well as all pleadings, briefs and evidence which were called to the Court's attention." CP at 2221. The trial court ruled against the pesticide handlers on all causes of action. This court denied the pesticide handlers' request for discretionary review and transferred the matter to the Court of Appeals. Division Two reversed, and we granted the Department's petition for review.

ISSUE

When the Department decided not to include mandatory cholinesterase monitoring in the agricultural pesticide regulations promulgated in 1993, and then rejected in 1997 the pesticide handlers' renewed request for rulemaking on such a program, did the Department violate its statutory duty under WISHA or otherwise act arbitrarily or capriciously?

ANALYSIS

Standard of Review. The pesticide handlers have challenged the validity of the 1993 rule,³ as well as the Department's subsequent failure to initiate rulemaking in 1997. The two challenges are based on distinct provisions in the APA.

The APA provides that "[t]he validity of any rule may be determined upon petition for a declaratory judgment addressed to the superior court of Thurston county, when it appears that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair the legal rights or privileges of the petitioner." RCW 34.05.570(2)(b) (emphasis added). The APA places "[t]he burden of demonstrating the invalidity of agency action ... on the party asserting invalidity" and further provides that "[t]he validity of agency action shall be determined in accordance with the standards of review provided in this section, as applied to the agency action at the time it was taken." RCW 34.05.570(1)(a), (b). The following standard of review is applicable to the pesticide handlers' challenge to the Department's 1993 rule:

(c) In a proceeding involving review of a rule, the court shall declare the rule invalid only if it finds that: The rule violates constitutional provisions; the rule exceeds the statutory authority of the agency; the rule was adopted without compliance with statutory rule-making procedures; or the rule is arbitrary and capricious.

RCW 34.05.570(2)(c) (emphasis added).

Whereas the pesticide handlers' challenge of the 1993 rule falls under RCW 34.05.570(2), their challenge to the Department's 1997 denial of their rulemaking request comes under RCW 34.05.570(4), the subsection governing actions other than rules or orders: "A person whose rights are violated by an agency's failure to perform a duty that is required by law to be performed may file a petition for review pursuant to RCW 34.05.514, seeking an order pursuant to this subsection requiring performance." RCW 34.05.570(4)(b) (emphasis added). As with the challenge to the 1993 rule, the pesticide handlers bear the burden of demonstrating their entitlement to relief, and judicial review must be based on the standard prescribed in the APA. Here, the standard applicable to the Department's alleged "failure to perform" in 1997 is very similar to the standard of review governing the challenge to the 1993 rule:

(c) Relief for persons aggrieved by the performance of an agency action, including the exercise of discretion, or an action under (b) of this subsection [subsection (4)] can be granted only if the court determines that the action is:

(i) Unconstitutional;

(ii) Outside the statutory authority of the agency or the authority conferred by a provision of law;

(iii) Arbitrary or capricious; or (iv) Taken by persons who were not properly constituted as agency officials lawfully entitled to take such...