ELR Citation: ELR 20170
No(s). 73-1934 (5th Cir. Jan 9, 1974)

An amended emergency temporary standard issued under the Occupational Safety and Health Act, and designed to protect farm workers from exposure to residues of certain organophosphorous pesticides, is vacated. The Secretary of Labor's determination that the standard was necessary is not supported by substantial evidence in the record as a whole. Under the Act, a serious emergency in which employees are exposed to grave danger from toxic substances must exist before the Secretary may promulgate such a standard, and the government has presented no conclusive evidence to show that farm workers are in danger of grave illness from these pesticides. On an accompanying petition by farm workers seeking to reinstate the original and stricter standard, the court rules that an emergency temporary standard may be amended in the same manner and under the same criteria as govern its initial issuance, namely without regard to the notice, public comment, and hearing provisions of the Administrative Procedure Act.

Counsel for Petitioner
R. Emmett Kerrigan
One Shell Square
47th Floor
New Orleans, LA 70139

John D. Conner
Sellers, Conner & Cuneo
1625 K Street, NW
Washington, DC 20006

Counsel for Respondents
William J. Kilberg Solicitor
Department of Labor
Washington, DC 20210

Walter H. Fleischer
Eloise E. Davies
Department of Justice
Washington, DC 20530

Counsel for Intervenor-Respondents
Miriam Guido
Migrant Legal Action Program, Inc.
1910 K Street, NW
Washington, DC 20006

Joanne Stern
Pat Butler
National Health Law Program
405 Hilgard Avenue
Los Angeles, CA 90024

David Lillesand
Camden Regional Legal Services
120 West Broad Street
Bridgeton, NJ 08301

Joseph Segor
Migrant Services Foundation
P.O. Box 1383
Homestead, FL 33030