RONEY, Circuit Judge:
This case comes to the Court of Appeals on petitions to set aside an emergency temporary standard issued pursuant to the Occupational Safety and Health Act of 1970 (OSHA)
In No. 73-2690, certain organizations representing farmworkers (hereinafter the Farmworkers) petition us to set aside only amendments to an original standard first adopted and then changed by the Secretary, on the ground that statutory procedures for amendment were not followed. The remaining petitions, all filed by representatives of food growers (hereinafter the Growers) seek to set aside the standard, both in its original form and as amended, on the ground that there is no substantial evidence to support the promulgation of an emergency standard.
OSHA is a new act and the Occupational Safety and Health Administration in the Department is a new agency. The consequent dearth of definitive decisions which might guide the Act's application, requires us to do more than merely review the challenged standard. We must determine first, the procedures by which an emergency temporary standard may be amended; second, the standard by which the action of the Secretary will be reviewed;
The Emergency Temporary Standard
The Secretary first published the "Emergency Temporary Standard for Exposure to Organophosphorous Pesticides" on May 1, 1973. An amended version was published on June 29.
The Statutory Scheme
Standards promulgated under OSHA have the force of law because Section 5 of the Act, 29 U.S.C.A. § 654, imposes upon every employer
The Secretary may promulgate standards in either of two
An emergency temporary standard, such as that under review here, may be issued without regard to the notice, public comment and hearing provisions of the Administrative Procedure Act. Subsection 6(c) of OSHA provides that
29 U.S.C.A. § 655(c)(1). The key to the issuance of an emergency standard is the necessity to protect employees from a grave danger. After issuing an emergency temporary standard, the Secretary must set in motion the procedures for promulgation of a permanent standard, which must issue within six months of the emergency standard's publication. 29 U.S.C.A. § 655(c)(3).
By contrast, a permanent standard may be issued in order to serve the objectives of OSHA and requires procedures similar to informal rulemaking under the Administrative Procedure Act, 5 U.S.C.A. § 553. Upon determination that a rule should be issued promulgating such a standard, the Secretary must proceed under subsection (b) of OSHA § 6, 29 U.S.C.A. § 655(b). A subsection (b) proceeding requires that a proposed standard be published in the Federal Register. Publication is followed by a 30-day period during which interested persons may submit written data or comments or file written objections and requests for a public hearing on the proposed standard. If a hearing is requested, the Secretary is to publish in the Federal Register a notice specifying the standard objected to and setting a time and place for the hearing. Within 60 days after the period for filing comments, or, if a hearing has been timely requested, within 60 days of the hearing, the Secretary may either issue a rule promulgating an occupational safety and health standard or determine that no such rule should be issued. 29 U.S.C.A. § 655(b). The same section and procedure also govern modification and revocation of occupational safety and health standards.
Whenever the Secretary promulgates a standard he must include "a statement of reasons for such action" in the Federal Register. 29 U.S.C.A. § 655(e). The requirement has been held to apply to emergency temporary standards. Dry Color Manufacturers' Association v. Department of Labor, 486 F.2d 98 (3d Cir. 1973).
The difference between these two types of standards is of critical importance on this review. Growers stress that the record does not support the need for subsection (c) emergency standards, leaving open all questions which might relate to a review of permanent standards. Farmworkers contend that emergency temporary standards may be modified only through following the subsection (b) permanent standard procedures.
The Factual Background
The emergency temporary standard now under review enjoyed a troubled gestation period. In Fall 1971, the Task Group on Occupational Exposure to Pesticides (hereinafter the Task Group), an interagency task force, was established under the aegis of the Council on Environmental Quality and directed to evaluate the dangers of occupational exposure to pesticide residues. In June 1972, under authority of section 7(b) of OSHA, 29 U.S.C.A. § 656(b), the Secretary appointed the Standards Advisory Committee on Agriculture (hereinafter the Advisory Committee) to assist him in his standard-setting function. One specific responsibility of the Advisory Committee was to submit recommendations regarding a standard on pesticides. The Committee appointed in turn a Subcommittee on Pesticides (hereinafter the Pesticides Subcommittee) to study exclusively the occupational hazards of pesticides. Both the Subcommittee and its parent body held several meetings, open to the public, on the subject.
In September 1972, the Farmworkers filed a petition with the Secretary setting forth data and arguments in support of an emergency standard on pesticides. On October 10th of that year, the Secretary refused the Farmworkers' request because the lack of reliable data on which to base reentry standards barred issuance of an emergency standard. He emphasized, however, that issuance of an emergency standard, when more definitive information became available, was not precluded. In the meantime, he advised, work would continue to establish a permanent standard under the more deliberate procedures of subsection (b).
In November, the Task Group submitted a preliminary special report to the Occupational Safety and Health Administration recommending strict control of organophosphates and establishment of reentry intervals. Early in December this report was withdrawn for amendment. In mid-December, both the Pesticides Subcommittee and its parent Advisory Committee unanimously concluded that neither an emergency nor justification for emergency standards existed. In late February 1973, the Task Group permanently withdrew its November preliminary report because of "inadequate data available to reach scientifically justifiable judgments on uniform national reentry standards." The November report was cited as an example of the inability of expert committees to arrive at valid reentry intervals. Moreover, the Task Group saw "no evidence of a national emergency that would require uniform national reentry standards."
On March 15, the Secretary requested the Advisory Committee to produce a recommended standard. Before doing so, the Committee sought specific assurances from the Director of the Occupational Safety and Health Administration's Division of Standards that their recommendation would be only a proposed standard, subject to modification in light of feedback from interested parties, and would not be effective immediately as an emergency standard. After receiving such assurances, the Advisory Committee recommended a proposed standard.
On the same day, the Farmworkers brought an action for injunction and declaratory relief in the District Court for the District of Columbia, seeking judicial review of the Secretary's failure to issue emergency temporary standards protecting agricultural workers from the occupational hazards of pesticides. Thomas v. Brennan, Civ.Act. No. 502-73, D.D.C. (filed March 15, 1973). One month later, the Assistant Secretary of Labor signed the original version of the rule entitled "Emergency Temporary Standard for Exposure to Organophosphorous Pesticides." Six days later the Farmworkers' court action was voluntarily dismissed. The following week, on May 1, 1973, the rule was published in
The Growers petitioned the Occupational Safety and Health Administration for reconsideration and repeal of the standard. Then Florida Peach Growers Association, Inc. and the Florida Citrus Production Managers Association filed petitions in this Court for review of the standard. Other growers' organizations petitioned other circuits for review. The petitions in other circuits were subsequently transferred to and docketed in this Court. Motions addressed to this Court for a stay were denied when the effective date of the standard was postponed by the Secretary in response to the petitions for reconsideration.
The Growers immediately moved to stay that effective date. A panel of this Court issued a stay, pending further order of the Court. The Government's motion to vacate the stay was denied. On July 6, the Farmworkers petitioned the District of Columbia Circuit for review of the Secretary's dilution of the original standard. Their petition was transferred here on the Government's motion. All petitions for review of the standard were consolidated on August 6 upon an unopposed Government motion.
The petitions for review and motions for stay are in accordance with OSHA's judicial review section, which provides:
29 U.S.C.A. § 655(f).
The Farmworkers' Petition Opposing Modification of Temporary Standards
The Farmworkers contend that the Secretary was without authority to issue an amended emergency standard without compliance with the procedures for promulgation of a permanent standard. They want the original May 1 standard reinstated.
Citing the Act's provision for standard promulgation, section 6, 29 U.S.C.A. § 655, they first refer us to language in subsection (c) providing that an emergency temporary standard shall be effective until superseded by a permanent standard promulgated in accordance with the procedures specified in subsection (b). Clearly, the amended standard, specifically titled as an emergency temporary standard, does not qualify as a permanent standard. The Farmworkers suggest that, there having been no valid supersession by a permanent standard, the original promulgation remains in effect. The language they rely on, however, does no more than establish the general method and time frame for replacing an emergency temporary standard with an occupational safety and health standard, the so-called permanent standard. It does not prohibit amendment of an emergency temporary standard in the same manner in which a temporary standard may be issued in the first place.
The Farmworkers next argue that subsection (b) provides the exclusive procedure for modifying or revoking
Farmworkers' position is contrary to the concepts underlying the Secretary's authority to issue emergency standards. It is inconceivable that Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency situations, intended to limit his ability to react to developments subsequent to his initial response. Although the Secretary decided here that his initial standards were too broad, in other circumstances he might first issue standards too narrow to protect employees against the grave danger envisioned by the Act. In such a case, adherence to subsection (b) procedures would not be in the best interest of employees, whom the Act is designed to protect. Such lengthy procedures could all to easily consume all of the temporary standard's six months life. We will not so read the Act "as to take from the [Secretary] the discretionary power to mould remedies suited to practical needs . . . ." NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 351-352, 73 S.Ct. 287, 291, 97 L.Ed. 377 (1953). We hold that emergency temporary standards may be amended in the same manner and under the same criteria as govern their initial issuance.
Accordingly, the petition for review in No. 73-2690 is denied.
The Scope of Review
On the Growers' petition we are faced with the threshold question of determining the standard by which we are to review emergency temporary standards. The words of section 6(f) clearly require that a review determine if the Secretary's determinations are supported by substantial evidence in the record taken as a whole. At oral argument, however, the Government suggested that the arbitrary and capricious standard, and not the substantial evidence test, is the appropriate standard of review for an exercise of quasi-legislative discretion in informal rulemaking, citing cases that refused to apply the substantial evidence test in review of informal decision making.
The quotation, however, is nothing more than the House managers' explanation of how differing House and Senate provisions were reconciled. The original House bill mandated formal rulemaking "on the record" for promulgation of standards, and provided for review under the substantial evidence test. The Senate version called for informal rulemaking with no specific reference to the standard of review. The conferees accommodated the Senate's desire for administrative convenience and flexibility by accepting informal rulemaking procedures, but placated House concern for protection of employers from arbitrary burdens imposed by a massive federal bureaucracy, but adopting the substantial evidence test for judicial review. Thus, although the substantial evidence test is anomalous in the context of informal rulemaking and would not apply were review governed solely by the APA,
After Associated Industries decided this issue contrary to the Secretary's contentions, the Government's line of reasoning was abandoned. The Government now argues that the substantial evidence test only applies to subsection (b) standards that have been promulgated after an informal public hearing.
Alternatively, the Government argues that, if the substantial evidence test is to be applied, its application should be less rigorous than would be the case were a fully developed adversary record before us. Force of circumstances supports this contention to a degree. The type of administrative proceeding and the form of record it produces will influence the method of review.
487 F.2d 342 at 349-350 (citations and footnote omitted).
Thus it seems clear that even with the required substantial evidence test, our review basically must determine whether the Secretary carried out his essentially legislative task in a manner reasonable under the state of the record before him.
The state of the record in this case is one of the difficulties besetting our review function. The administrative record is comprised of some 238 documents occupying approximately two and one half feet of shelf space. It includes such items as letters between Government officials, volumes of transcribed Advisory Committee and Pesticide Subcommittee hearings, Senate hearings and committee reports, the Farmworkers' petition in Thomas v. Brennan, supra, case reports of pesticide poisonings, full length texts on the pharmacology of the organophosphates, copies of other agencies' regulations, an abstract of OSHA, studies by the staff of the Task Group on various aspects of the problem, state public health reports and other statistical sources. The most common items in the record are copies of articles published in scientific journals. These run the gamut from descriptions of the symptoms notice in outbreaks of pesticide poisoning among farmworkers, to investigations of the factors influencing the decay of the organophosphates after application, to case reports of children who swallowed pesticides, to studies of various clinical effects of the organophosphates on mammalian species. A large group of articles is made up of contributions to the advancement of research methodology and measurement technology.
A record of this nature is not as easily reviewable as one in which the issues in dispute have been focused narrowly in an adjudicatory proceeding or one in which precise findings of fact point us in the right direction. In this case judicial proceedings have taken the full six month period since publication of the amended standard.
We find no substantial evidence in the record considered as a whole to support the determination by the Secretary that emergency temporary standards were necessary within the demands of section 6(c). There is an abundance of evidence that emergency standards are not necessary. The investigative groups convened by the Government to study the problem of occupational exposure to pesticides—the Pesticides Subcommittee, the Advisory Committee, and the Task Group—all firmly concluded that no emergency existed and that there was no justification for use of an emergency temporary standard. Although these findings by his own investigators do not preclude the Secretary from issuing an emergency standard, they indicate the strength of the evidence contrary to his determination.
Extraordinary power is delivered to the Secretary under the emergency provisions of the Occupational Safety and Health Act. That power should be delicately exercised, and only in those emergency situations which require
The need for a serious emergency upon which to ground temporary standards is reflected in the words of the Act which require the Secretary to determine "(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger." The Act requires determination of danger from exposure to harmful substances, not just a danger of exposure; and, not exposure to just a danger, but to a grave danger; and, not the necessity of just a temporary standard, but that an emergency standard is necessary.
The reasons published by the Secretary with the standards do not themselves evidence a factual need for emergency standards. The record supports the need for some standards, but not emergency standards. The Secretary's findings were that:
38 Fed.Reg. 10716 (1973).
The able Government brief indicates the existence of an emergency because of the ban on the use of DDT, which in
The Secretary's heavy reliance on the toxicity per se of the organophosphorous pesticides to support the allegedly grave danger to agricultural employees through residue exposure is unjustified. In the published standards the Secretary seems to rely on the Senate report "that an estimated 800 persons are killed each year as a result of improper use of pesticides, and another 80,000 injured." This report refers to improper use, and encompasses all pesticides.
The Growers concede the high toxicity of these pesticides in the laboratory,
Statistics of "acute poisonings" of agricultural workers fail to distinguish between
The Secretary seeks to justify his reliance on these statistics with evidence that agricultural injury statistics seriously underreport the incidence.
We reject any suggestion that deaths must occur before health and safety standards may be adopted. Nevertheless, the danger of incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health, becomes important in the consideration of the necessity for emergency measures to meet a grave danger.
In sum, considering the record as a whole, the Secretary has not shown by substantial evidence that agricultural workers are exposed to a grave danger from exposure to organophosphorous pesticide residues on treated plants that must necessarily be protected by an emergency temporary standard. We, of course, do not intimate any opinion as to the feasibility of the published standard to furnish adequate protection, were an emergency shown, nor does our determination in any way reflect consideration of the propriety of a permanent standard promulgated under subsection (b) of the Act.
All petitions for review, except for that in No. 73-2690, are granted and the Emergency Temporary Standard is determined to be invalid and is vacated.
Florida Citrus Production Managers Association v. U. S. Department of Labor, 73-2279; Washington State Horticultural Association v. Brennan, 73-2283; Idaho Horticultural Society v. Brennan, 73-2327; American Farm Bureau Federation v. Brennan, 73-2493; Massachusetts Fruit Growers Association v. Brennan, 73-2513; Michigan State Horticultural Society v. Brennan, 73-2518; North Carolina Apple Grower's Association v. Brennan, 73-2622; National Peach Council v. Brennan, 73-2623; Raza Association of Spanish Surnamed Americans v. U. S. Department of Labor, 73-2690; New York State Wine Grape Growers Association v. Brennan, 73-2734; Virginia Farm Bureau v. Brennan, 73-2795; Pennsylvania State Horticultural Society v. Brennan, 73-2871; Colorado Apple Administrative Committee v. Brennan, 73-2948.
TABLE I. — Field reentry safety intervals in days for crops treated with organophosphorous pesticides _________________________________________________________________________________________________ Oranges, Lemons, Grapes Peaches Grapefruit Pesticide Apples _________________ _______ _ ______ ______________ Tobacco Dry Wet Dry Wet Dry Wet Area Area Area Area Area Area _________________________________________________________________________________________________ Azinphosemethyl (Guthion)........ 3 14 3 14 3 10 3 4 Carbophenothion (Trithion)....... 3 14 3 14 3 10 3 ..... Demeton (Systox)................. 3 4 3 5 3 5 3 ..... Disulfoton (DiSyston)...................................................................... 5 EPN.............................. 3 14 3 10 3 10 3...... Methyl parathion................. 3 .................. 14 3 10 3 3 Mevinphos (Phosdrin)............. 3 4 2 4 3 5 3...... Monocrotophos (Azodrin)................................................... 3 Oxydemetonmethyl (Meta-Systox R).................................................. 4 3 5 3...... Parathion........................ 3 14 3 14 3 10 3 5 Phosphamidon (Dimecron).......... 3 14 3 .......................................... TEPP............................. 1 3 1 .......................................... _________________________________________________________________________________________________  Average annual rainfall of 25 inches or less.  Average rainfall above 25 inches or an area where moderate rainfall has occurred, or a moderate wash has been applied, after pesticide application. 38 Fed. Reg. 17216 (1973).
29 C.F.R. 1911.5(a) (2) (1973).
Nothing in the statute itself, or in the legistive history, supports such a distinction.
Legislative History, supra, at 147, 1970 U.S. Code Cong. & Admin.News at p. 5184.
In recommending the Senate-House Conference Report for final adoption, Congressman Steiger of Wisconsin, a House member of the Conference Committee reported:
TEMPORARY EMERGENCY STANDARDS
Legislative History, supra, at 1218.
The toxicity of the organophosphates results from inhibition of the enzyme cholinesterase, which plays an important role in the appropriate cessation of nerve impulse transmission. In this they are similar to agents of chemical warfare ("nerve gas"). Absorption can occur through the eyes, the unbroken skin, and the respiratory and intestinal tracts.