More Pesticide Power: EPA's Farm Worker Field Reentry Standards Oust OSHA's Jurisdiction

The environmental hazards most often associated with pesticides are those posed by chronic low level exposure: bio-accumulation of toxic and possibly carcinogenic chemicals in both man and animals. While these relatively diffuse and longterm harms are real enough, persons who come into direct contact with such chemicals because of their occupations face greater dangers. This category includes both persons who apply pesticides to fields and farmworkers who must go into fields after these applications. Of the two groups, the farmworkers are less well able to protect themselves since in most instances they are not privy to warnings on pesticide labels and thus may not be aware of suggested precautionary measures.

Two laws recently enacted by Congress, the Occupational Safety and Health Act of 1970 (OSHA),¹ and the Federal Environmental Pesticide Control Act of 1972 (FEPCA),² were intended to remedy this problem. Predictably, confusion soon arose over possible jurisdictional conflicts between the broad regulatory schemes established by the two statutes.

In the first appellate judicial decision³ dealing with these conflicts, the U.S. Court of Appeals for the D.C. Circuit has affirmed the wide scope of the Environmental Protection Agency's regulatory powers under FEPCA by ruling that EPA has the authority to promulgate rules governing farmworker exposure to pesticides. The court held further that by promulgating such rules, EPA pre-empted the Secretary of Labor from using his powers under OSHA to set similar standards.

The plaintiffs, two farmworker organizations and an individual exposed worker, asserted that under OSHA, [5 ELR 10217] jurisdiction over farmworker exposure to pesticides lies with the Labor Department, and sought to compel the Secretary of Labor to issue final regulations pursuant to this statutory authority. The Secretary had issued an emergency temporary standard for worker exposure to 21 organophosphate pesticides on May 1, 1973.⁴ Under OSHA, he was required to issue a permanent standard within six months of that date. Two months later, however, EPA promulgated a notice that it intended to regulate farmworker pesticide exposure, along with an announcement of public hearings on the matter and a proposed rule for comment.⁵

Plaintiffs filed suit after the Secretary failed to issue a permanent standard within the required six months, then amended their complaint to include the EPA Administrator after learning from a draft agreement between the two agencies that EPA was to have primary responsibility for establishing occupational safety and health standards with respect to pesticides.⁶ EPA proceeded, on March 11, 1974,⁷ to publish a proposed standard prescribing worker reentry times into pesticide treated fields, and to promulgate final reentry standards on May 10, 1974.⁸ The Secretary of Labor acquiesced in EPA's assumption of jurisdiction.

The Occupational Safety and Health Act gives the Secretary of Labor broad authority to issue standards to protect workers exposed to hazards in their employment. But § 4(b)(1) of the statute expressly excludes areas regulated by other agencies:

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.⁹

This provision was the focal point of the litigation. According to plaintiffs, a careful reading of the statutory language and legislative history demonstrates that FEPCA was not written nor intended to regulate employee health or safety. Thus, they argued, EPA does not possess statutory authority "to prescribe or enforce standards … affecting occupational safety or health" within the meaning of OSHA and therefore cannot legally preempt the Secretary of Labor's promulgation of field reentry standards.

The court was not, however, persuaded by plaintiffs' reading of FEPCA, finding that it ignored significant portions of the Act and its legislative history. The court's own analysis concluded instead that EPA has ample authority to issue field reentry standards to protect farmworkers. Pointing out that "unreasonable adverse effects on the environment" is defined in the Act as "unreasonable risk to man or the environment" (emphasis the court's), Judge Tamm went on to note the statute's concern with "injury to the applicator" and with protecting "health and the environment." The court also emphasized that Senate Commerce and Agriculture and Forestry Committee reports had explicitly listed farmworkers among the beneficiaries of the Act, even without specific statutory language to that effect.

Plaintiffs raised the additional claim that even if EPA does possess statutory authority to set field reentry standards, OSHA § 4(b)(1) should not be construed as prohibiting the Secretary of Labor from issuing and enforcing his own standards. To support this contention, plaintiffs stressed that farmworker protection was a primary purpose of OSHA, but only an incidental aim of FEPCA. They also argued that the purpose of OSHA would be frustrated if EPA were allowed to preempt the Secretary's jurisdiction. According to the court, however, the meaning of § 4(b)(1) is clear on its face; the Secretary has no jurisdiction to promulgate or enforce occupational safety and health standards for particular employee working conditions where another federal agency is exercising statutory authority over those conditions. Nothing in OSHA's legislative history suggests that Congress did not mean precisely what is said in § 4(b)(1), nor can any intention not to preempt the Secretary be inferred from FEPCA and its legislative history.

This result in no way frustrates OSHA's purposes, the court continued; in fact it comports with the clearly evidenced congressional intent to avoid the wasteful duplication that would result where another federal agency was also protecting the occupational safety of a class of workers. Explicitly acknowledging that exposure to pesticides presents a serious health hazard to the nation's farmworkers, the court emphasized it was not holding that these workers are without protection from such dangers, but rather than Congress, by enacting FEPCA, gave EPA instead of the Department of Labor the authority to provide that protection.

This last point hints at the crux of the matter. At oral argument, plaintiffs admitted that this suit had been brought because they considered EPA's power to enforce reentry standards under FEPCA insufficient as compared to the Secretary of Labor's authority under OSHA. Under § 14 of FEPCA,¹⁰ the EPA Administrator [5 ELR 10218] does have a duty, in setting the amount of civil penalties, to consider the size of the business of the person charged, the effect on the person's ability to continue in business, and the gravity of the violation. By contrast, consideration of such mitigating factors is not required in the administrative assessment of civil penalties under OSHA.

The court disputed plaintiffs' view of the adequacy of EPA enforcement by listing the components of the EPA Administrator's "comprehensive authority to ensure that pesticides are properly used": he can investigate potential violations, issue stop-use orders, initiate seizure proceedings, and institute civil and criminal proceedings. The court also noted that EPA had recently established a toll-free telephone "hotline" to receive reports of pesticide misuse around the nation.

This line of argument misses the more basic, unarticulated fear which seems to underlie plaintiffs' objection, the suspicion that EPA is more vulnerable to political pressures from the pesticide lobby than is the union-backed Department of Labor, and is thus more likely to be forced to compromise on the stringency of particular reentry standards or the vigorous prosecution of enforcement actions. This belief mirrors the well-publicized concern on the part of many environmental groups that EPA's dedication to rigorous pesticide regulations has been seriously undermined by a powerful coalition of opponents including farm state and southern congressmen, the Department of Agriculture, and the pesticide industry. These pressures have become most obvious in recent weeks as EPA has struggled to retain its regulatory authority in the FEPCA amendments presently under consideration in Congress.

Clear evidence of the effort to emasculate EPA's regulatory authority over pesticides is provided by a recent House amendment, defeated only by a narrow margin, which would have given the Agriculture Department a veto over any standard or order issued by EPA under FEPCA. In order to head off such drastic measures, EPA has, according to critics, relaxed standards in other areas, for example by issuing an increasing number of unwarranted emergency and experimental use permits which have had the effect of cutting back on previously-ordered bans on substances like DDT and sodium cyanide.¹¹

Although the opinion in Organized Migrants did not explicitly address these matters, it did mention one issue bearing on plaintiffs' political concerns. In a footnote, the court discussed, without ruling on its validity, a provision in the Labor-EPA draft agreement which commits the Department of Labor to use its OSHA enforcement powers in conjunction with and reinforcement of EPA's statutory authority under FEPCA. While Labor's enforcement actions may not conflict with those of EPA, such a cooperative enforcement effort, with Labor's more potent powers augmenting EPA's enforcement authority, could go a long way toward obviating plaintiffs' dissatisfaction with the present administrative arrangement.

The D.C. Circuit's decision in Organized Migrants is an important vindication of the broad scope of EPA's regulatory powers under FEPCA. As such, if may represent a shot in the arm for EPA at a time when the agency is being whipsawed between the pesticide lobby on the one hand and environmental groups on the other, both dissatisfied with the agency's performance in the field of pesticide regulation. The ruling may provide EPA with needed encouragement as it continues to face a grueling fight in Congress to preserve its regulatory authority under FEPCA.

1. 29 U.S.C. §§ 651 et seq. (1970).

2. 7 U.S.C. §§ 136 et seq. (Supp. III 1973), ELR 41301. FEPCA is actually the name of a set of amendments to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 135 et seq. (1970), and is often cited by that name instead. For simplicity's sake, all references to the statute in this Comment will use FEPCA rather than FIFRA.

3. Organized Migrants in Community Action, Inc. v. Brennan, 5 ELR 20681 (D.C. Cir. Oct. 9, 1975).

4. 38 Fed. Reg. 10715 (May 1, 1973). The standard was subsequently revised on June 29, 1973 (38 Fed. Reg. 17214), and finally vacated by the Fifth Circuit Court of Appeals on January 9, 1974, two days before suit was filed in Organized Migrants, for lack of substantial supporting evidence in the record. Florida Peach Growers Ass'n v. Dep't of Labor, 489 F.2d 120, 4 ELR 20170 (5th Cir. 1974).

5. 38 Fed. Reg. 20362 (July 31, 1973).

6. As soon as plaintiffs learned of the Fifth Circuit's ruling in Florida Peach Growers, supra n. 4, the complaint was also amended to allege that the Secretary had failed to issue a permanent standard or to determine that a standard should not be issued within 60 days of the close of hearings. This amendment did not change the thrust of the complaint.

7. 39 Fed. Reg. 9457 (Mar. 11, 1974).

8. 39 Fed. Reg. 16888 (May 10, 1974).

9. 29 U.S.C. § 653(b)(1).

10. 7 U.S.C. § 136l (Supp. III 1973). ELR 41307.

11. See, e.g., Comment, Coyote Control: Ford Heeds Ranchers' Howls, 5 ELR 10157 (Sept. 1975); Environmental Protection Agency — Recent Developments, 4 ELR 10039 (1974), 5 ELR 10164 (Sept. 1975).