Opinion for the Court filed by Circuit Judge TAMM.
TAMM, Circuit Judge:
This case involves an alleged conflict of legislation; we must determine
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:
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.
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.
On March 11, 1974, EPA published a proposed standard prescribing worker reentry 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.
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.
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:
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."
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 distribute in any way a misbranded pesticide. Id. at § 136j(a)(1)(E). Under the Act's definitions, a pesticide is misbranded if "the labeling accompanying it does not contain directions for use which . . . if complied with . . . are adequate to protect health and the environment." Id. at § 136(q)(1)(F). Moreover, the Act makes it unlawful for any person "to use any registered pesticide in a manner inconsistent with its labeling." Id. at § 136j(a)(2)(G).
Even before FEPCA's enactment, EPA and predecessor agencies construed the labeling provisions of FIFRA to require field re-entry limitations for many pesticides. See 39 Fed.Reg. 16888 (1974). However, these were merely informational until FEPCA made them enforceable. See id. at 16889. It is clear from an examination of the explanatory statement accompanying EPA's proposed and final rules that these standards were promulgated and implemented under the labeling authority given EPA by FEPCA.
The Act's legislative history buttresses our conclusion that Congress meant to give EPA authority to regulate farmworker exposure to pesticides. Since we discuss FEPCA's legislative history more fully infra, we will only note here that both the Senate Commerce Committee and Agriculture and Forestry Committee engaged in an extensive colloquy over whether to include specific language in FEPCA indicating that farmworkers were protected. While the Commerce Committee thought that specific language would further the Act's purposes and the Agriculture and Forestry Committee did not, both Committees agreed that farmworkers were among the beneficiaries of the Act, even without specific language to that effect. Compare S.Rep.No.92-970, 92d Cong., 2d Sess. at 27 (1972) (Commerce) with S.Rep.No.92-838 (Part II), 92d Cong., 2d Sess. at 43-46 (1972) (Agriculture and Forestry), U.S.Code Cong. & Admin.News 1972, p. 3993. In sum, EPA had ample statutory authority to promulgate and enforce occupational health and safety standards for farmworkers.
Appellants also claim that even if EPA possesses statutory authority to set field re-entry standards, section 4(b)(1) of OSHA should not be construed to prohibit the Secretary of Labor from issuing and enforcing his own standards. To support this claim, appellants point to the legislative history of the two acts, maintaining that farmworker protection was one of OSHA's primary purposes. In contrast, appellants characterize the legislative history of FEPCA as evincing no more than an incidental interest in protecting farmworkers from exposure to pesticides. Next, appellants argue that the purpose of OSHA would be frustrated if FEPCA were construed to preempt the jurisdiction of the Secretary. Finally, appellants rely on a decision of the Occupational Safety and Health Review Commission which they maintain supports this approach.
Section 4(b)(1), set out in Part I, is seemingly 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. Appellants would have us look beyond the plain meaning of this language to discern a contrary legislative intent.
We recognize that the plain meaning of a statute cannot override an obviously contrary legislative purpose, Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 379-80 and n.13 (1973); Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 479 F.2d 842, 855 (en banc), cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973), for "even the most basic general principles of statutory construction must yield to clear contrary evidence of legislative intent." National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). We are also cognizant that a statute's "literal meaning will not be followed when it appears that to do so
Undeniably, one of the major concerns that prompted OSHA's enactment in 1970 was the occupational hazard presented by the misuse of pesticides. See 116 Cong.Rec. 37628 (1970) (Statement of Senator Nelson); id. at 37325 (Statement of Senator Williams). Nevertheless, there is another clearly enunciated legislative intent which is manifest in section 4(b)(1). While giving the Secretary omnibus authority to regulate occupational safety and health, Congress sought to avoid the wasteful duplication that would result where another federal agency was also providing for the occupational safety of a class of workers. The Senate Report on its version of OSHA, which contained an analogue to the present section 4(b)(1), stated that the bill
S.Rep.No.91-1282, 91st Cong., 2d Sess. at 22 (1970) U.S.Code Cong. & Admin.News 1970, pp. 5177, 5199. The House Labor Committee, reporting on a bill similar to the final version observed that "[t]he Committee does not wish the Secretary of Labor to assert his statutory authority under this bill where another agency or department is actually exercising its authority." H.Rep.No.91-1291, 91st Cong., 2d Sess. at 34 (1970). Similarly, in recommending the Conference Report on the floor of the House, Representative Steiger noted that the "terms of the bill will apply to all businesses having an effect on Commerce except where another Federal agency other than the Department of Labor is exercising statutory authority to prescribe or enforce occupational safety and health standards or regulations." 116 Cong.Rec. 42206 (1970). Throughout OSHA's legislative history we have found numerous other statements that support appellees' position and none that support appellants'. Comm. Print, supra, at 308, 997, 1019, 1037, 1204.
As to the effect of future legislation on the Secretary's jurisdiction, Representatives Erlenborn and Daniels expressed mildly divergent views in the following exchange during the House debate:
116 Cong.Rec. 38382 (1970). Under one view, a future legislative enactment
Neither interpretation of the effect of subsequent legislation aids appellants' cause for it is absolutely clear that by enacting FEPCA Congress intended to vest EPA with authority over farmworker exposure to pesticides. FEPCA requires the Administrator to register pesticides only after he determines that they will not pose unreasonable risks to man and the environment. The Administrator also can place restrictions on a pesticide's use. Further a pesticide's labeling must be adequate to protect man and the environment, and a person who fails to comply with the instructions for application, thereby exposing farmworkers to danger, can be held civilly and criminally responsible.
The Senate Commerce Committee, which considered FEPCA along with the Agriculture Committee, sought amendments which would have, inter alia, explicitly included farmworkers as objects of the Act's protections. However, it was forced to admit that "the Committee on Commerce agrees with the Environmental Protection Agency and the Committee on Agriculture and Forestry that the health of farmworkers will be considered without the amending language . . .." S.Rep.No.92-970, supra, at 27, U.S.Code Cong. & Admin. News 1972, p. 4111. Moreover, the Commerce Committee stated that only one of its changes, not relevant here, was substantive, thus reinforcing that farmworkers were beneficiaries of the Act's protections even without the proposed changes. Id. The Agriculture and Forestry Committee, which had favorably reported the bill to the Senate without the amendments proposed by the Commerce Committee, prepared a report that opposed them. Appellants maintain that the Agriculture Committee did so because it was not interested in protecting farmworkers. Appellants' Br. at 13. However, we find a contrary intent in the following passages:
S.Rep.No.92-838 (Part II), supra, at 43, U.S.Code Cong. & Admin.News 1972, p. 4063. The Committee then continued:
Id. at 43-44, U.S.Code Cong. & Admin. News 1972, p. 4063. Lastly, the Committee observed that: "The farmer and the farmworker are the persons most likely
We cannot find any frustration of congressional purpose in this holding. EPA has and is continuing to develop an expertise concerning the effects of pesticides that would be wasteful to duplicate. Moreover, the area is fraught with a number of conflicting interests that must be balanced. For example, a pesticide might not be dermally or nasally toxic, thus not presenting a hazard to farmworkers, but could be extremely toxic to other living things. In contrast to the Administrator, the Secretary has no authority to resolve such conflicts.
The final prop in appellants' argument is that the Occupational Health and Safety Review Commission, which hears appeals from employers who have been cited for violating OSHA, has interpreted section 4(b)(1) in Fineberg Packing Co., Inc., 7 OSAHRC 405 (1974), to preempt the Secretary's jurisdiction only where the allegedly preempting statute was passed primarily for the protection of employees. Appellants have misperceived the significance of that case. The Commission concluded in Fineberg that the Wholesome Meat Act did not preempt OSHA because "[t]here is no indication that employees in the workplace are within the class which Congress sought to protect under the statute." Id. at 406. However, if the point were material, the legislative history of FEPCA demonstrates that farmworkers "are the most obvious object of the bill's protection."
We are cognizant that exposure to pesticides presents a serious health hazard to the nation's farmworkers and believe that they are entitled to the full measure of protection. We do not hold today that farmworkers are without protection from the hazards posed by pesticide exposure, but rather that Congress, by passing the Federal Environmental Pesticide Control Act, endowed the EPA with the authority to provide that protection. Once the Administrator exercised EPA's authority, the Secretary could not duplicate his efforts.
At oral argument, the court asked if this suit had been brought because appellants thought that EPA's enforcement authority was not sufficient when compared to the Secretary's authority under OSHA. Our question elicited an affirmative response. While OSHA's enforcement powers are indeed broad, see generally National Realty and Construction Co., Inc. v. Occupational Safety and Health Review Comm., 160 U.S.App.D.C. 133, 489 F.2d 1257 (1973), the Administrator too has comprehensive authority to ensure that pesticides are properly used. He may investigate potential violations, 7 U.S.C. § 136b, issue stop-use orders, id. at § 136k(a), initiate seizure proceedings, id. at § 136k(b), and institute civil and criminal proceedings, id. at § 136l. Most recently, EPA established a pesticide hotline to receive reports of misuse.
The "Environmental Protection Agency Draft Memorandum of Agreement Regarding Agricultural Workers Protection Standards for Pesticides" (Nov. 1, 1973, J.A. 10) provides: "EPA will enforce these standards in accordance with the FIFRA and applicable regulations thereto. DOL may assist in this enforcement after adopting these standards as DOL standards. While enforcement authority under the FIFRA and the OSHA is not identical, DOL standards and enforcement shall not conflict with those of EPA."