Terminix Intern. v. Tenn. Dept. of Labor
| Decision Date | 28 November 2001 |
| Docket Number | No. M2001-00174-COA-R3-CV.,M2001-00174-COA-R3-CV. |
| Citation | 77 S.W.3d 185 |
| Parties | The TERMINIX INTERNATIONAL COMPANY, L.P., et al., v. The TENNESSEE DEPARTMENT OF LABOR, et al. |
| Court | Tennessee Court of Appeals |
Alan G. Crone and James Julius Webb, Jr., Memphis, Tennessee; and Lawrence S. Ebner, Washington, D.C., for the appellants, Terminix a/k/a The Terminix International Company and TruGreen, Inc., L.P.
Paul G. Summers, Attorney General and Reporter; and E. Blaine Sprouse, Assistant Attorney General, for the appellees, Tennessee Department of Labor and Tennessee Occupational Safety and Health Review Commission.
FRANK G. CLEMENT, JR., Sp. J., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.
This matter is before the Court upon a petition seeking judicial review of an administrative order. The Petition was initiated in the Chancery Court of Davidson County, Tennessee, wherein the appellants challenged the jurisdiction of the Tennessee Department of Labor, Division of Occupational Safety and Health ("TOSHA") to conduct safety inspections concerning pesticide applicators (i.e., persons who apply pesticides) and to enforce such regulations. The Chancery Court ruled that the Tennessee Occupational Safety and Health Review Commission (TOSHA) has subject matter jurisdiction to conduct inspections and issue citations concerning the safety of pesticide applicators in the work place. We affirm.
The appellants/plaintiffs, Terminix International Company, L.P. and TruGreen, Inc., L.P., set forth three issues on appeal.
The first two issues can be paraphrased as follows: Whether the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") and the Federal Occupational Safety and Health Administration Act ("FOSH") preempt the Tennessee Department of Labor, Division of Occupational Safety and Health ("TOSHA"), from imposing personal protective equipment requirements upon professional pesticide applicators engaged in mixing, loading or applying federally regulated pesticides?1
The third issue can be paraphrased as follows: Whether the Chancery Court and the Tennessee Occupational Safety and Health Review Commission (the "Commission") correctly determined that TOSHA has jurisdiction and the authority to inspect and to issue citations for alleged violations of personal protective equipment (PPE) requirements applicable to professional pesticide applicators engaged in mixing, loading or applying pesticides?2
This panel finds it unnecessary to determine whether the appellants are or are not correct as it pertains to the first two issues for such are not at issue presently. They may or may not have been at issue before the Commission but they were not at issue when the Chancery Court ruled and are not at issue before this court.3
We have concluded that the only issue properly before this court is whether TOSHA has jurisdiction and/or authority to inspect the work place and, if appropriate, to issue citations for alleged violations of requirements applicable to professional pesticide applicators engaged in mixing, loading or applying pesticides in the workplace. This Court finds that the third issue sufficiently encompasses the real issues.
Appellants, Terminix International Company, L.P. ("Terminix") and its corporate sibling, TruGreen, Inc., L.P. ("TruGreen"), are both headquartered and have operations in Memphis, Tennessee. The pertinent nature of Terminix's business is residential and commercial pest control. The pertinent nature of TruGreen's business is lawn and landscape care. Both companies employ professional pesticide applicators.4
On June 25, 1997, a TOSHA representative inspected a TruGreen work site in Memphis, Tennessee. Following the inspection, TOSHA issued citations5 against TruGreen alleging various violations of the Tennessee Occupational Safety and Health Act of 1972 ("Tennessee OSH Act"), T.C.A. §§ 50-3-101, et seq., including alleged violations of certain of TOSHA's general personal protection equipment ("PPE") requirements.6
On July 16, 1997, a TOSHA representative inspected a Terminix work site in Memphis, Tennessee. As a result of the inspection, TOSHA issued a citation against Terminix alleging various violations of the Tennessee OSH Act, including alleged violations of certain of TOSHA's general PPE requirements.
Both companies contested the citations issued against them. Consequently, TOSHA filed a Complaint against Terminix and TruGreen before the Commission. Terminix and TruGreen thereafter challenged TOSHA's jurisdiction to impose or enforce PPE requirements in connection with the pesticide applicators' handling (i.e., mixing, loading or application) of pesticides, asserting that the EPA has exclusive authority pursuant to FIFRA to establish, through pesticide product labeling, PPE requirements for pesticide applicators. In support of their position, Terminix and TruGreen relied upon the Affidavit of the Administrator of Ag Inputs and Pesticides for the Tennessee Department of Agriculture. In his affidavit, the Administrator stated that the Tennessee Department of Agriculture enforces EPA's PPE "labeling requirements" for pesticide applicators.
After reviewing the parties' position papers concerning the jurisdictional issue, the Commission ruled that TOSHA was not preempted from inspecting or issuing citations against Terminix and TruGreen. The Commission found that "[t]here is no other state agency that is currently enforcing safety and health standards in the state of Tennessee; therefore, it does fall back to TOSHA."
Terminix and TruGreen sought judicial review of the Commission's decision concerning jurisdiction and requested a stay of proceedings in the Commission pending the Court's ruling on the jurisdictional issue.7 The trial court denied the motion for a stay of the Commission's proceedings, but retained jurisdiction over the consolidated cases in the event the request for judicial review was renewed after the Commission entered its final orders.8
The Commission hearings took place on July 21-22, 1999. The Commission issued its respective orders on October 22, 1999. The Commission vacated several of the violations assessed by TOSHA, but held that Terminix and TruGreen had committed certain violations. On December 17, 1999, Terminix and TruGreen filed an amended petition for judicial review of both the preliminary order and the October 22, 1999 final orders of the Commission.9 Following various proceedings, on June 13, 2000, the Chancery Court issued its Memorandum Opinion. The Chancellor made the following pertinent determinations:
The sole issue before the court is whether TOSHA is preempted by the Tennessee Department of Agriculture from regulating the workplace of Terminix and Trugreen. Petitioners contend that the Tennessee Insecticide, Fungicide and Rodenticide Act; the Tennessee Application of Pesticides Act of 1978; and associated rules and regulations bestow subject matter jurisdiction in this area on the Tennessee Department of Agriculture.
* * * * *
Section 4(b) of the Occupational Safety and Health Act, 29 U.S.C. § 658(b)(1)(1976) provides that "nothing in this chapter shall apply to working conditions of employees with respect to which other federal agencies ... exercise authority to prescribe or enforce standards or regulations affecting occupational safety and health."
* * * * *
In the instant case, a close reading of the rules promulgated by the Tennessee Department of Agriculture indicate they apply specifically to the labeling of pesticides and licensing of applicators. There is no mention of employee workplace safety. Nor are there any rules that specifically cover the area of occupational safety and health standards. (emphasis added)
Therefore, ... this court is of the opinion that the Tennessee Occupational Safety and Health Review Commission's decision to exercise subject matter jurisdiction over the workplace of Terminix and Trugreen should be affirmed.
See Memorandum Opinion of the Chancery Court, entered June 13, 2000.10
Upon appeal of a decision taken by an administrative agency following a contested case proceeding, the standard of review in this court is the same as it is in the chancery court. Ware v. Greene, 984 S.W.2d 610, 614 (Tenn.Ct.App.1998). Thus, we apply the standard set out in Tenn.Code Ann.§ 4-5-322(h). Appellants' claims in this appeal amount to a claim that the Commission's decision was made "in violation of constitutional or statutory provisions." Tenn.Code Ann. § 4-5-322(h)(1).
Initially, Terminix and TruGreen were cited for numerous violations; however, a number of violations were dismissed by the Commission. Some of the now dismissed violations may or may not have infringed upon the preemptive authority of the EPA. Whether they did or did not is moot for purposes of this appeal for the Commission dismissed the other citations prior to the Chancery Court ruling. Examples of the citations presently at issue are as follows:
In Citation 1, Item 3a., Terminix was cited for violating 29 CFR 1910.134(b)(3). The citation reads, "The users of respirators were not instructed and trained in the proper use of respirators and their limitations." An example given stated: "Employee interviews revealed that pesticide and termite technicians did not know the company policies on when to wear respiratory protection, such as when applying pesticides in confined spaces or crawl spaces."
In Citation 1, Item 3b., Terminix was cited for violating 29 CFR 1910.134(b)(5). The citation reads, "Respirators were not cleaned and disinfected." An example given stated: "3M half-mask cartridge respirators ... not kept reasonably clean; the inside of both respirators were dirty."
In Citation 1, Item 3c., Terminix was cited for violating ...
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