### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 7, 2001 Session
THE TERMINIX INTERNATIO NAL COMPANY, L.P., ET AL. V 

### . THE

TENNESSEE DEPARTMENT OF LABOR, ET AL. Appeal from the Chancery Court for Davidson County No. 99-368-I Irvin H. Kilcrease, Jr., Chancellor

_________________________ No. M2001-00174-COA-R3-CV - Filed Nove mber 28, 2001

_________________________ This matter

is before the Court upon a petition seeking judicial review of our administrative order. The Petition was initiated in the Chancery Court of Da vidson Co unty, Tennessee , wherein the appella nts ch allen ge d the jurisdiction of the Tennessee Department of L abor, Division of Occupational Safe ty and Health (“TOSHA”) to conduct safety inspections concerning pesticide applicators (i.e., pe

rsons who apply pesticide s) and to

enforce such

regulations. The Chancery Court ruledthat the TennesseeOccupational Safety and Health Review Commission (TOSHA) has subject matter jurisdiction to conduct inspections and issu e citations concerning the safety of pesticide applica tors in the work pla ce. We af

firm. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed
F RANK G. C LEMENT , J R ., S P . J., delivered the opinion of the court, in which W IL LI AM B. C AIN and P AT RICIA J. C OTT RELL , JJ., joined.
Alan G. Crone and James Julius Webb, Jr., Memphis, Tennessee; and Law rence S. Ebner, Washington, D.C ., f or t he a ppe ll ant s, T erm in ix a/k /a T he T erm in ix In ter national Company and TruGre en, I

nc., L .P.
Paul G. Summers, Attorney Gene ral and Reporter; and E. Blaine Sprouse, Assistant At torne y Genera l, for the appellees, Tennessee Depa rtment of La bor and Tennessee Occup ational Sa fety and Health Review Commission. OPINION Issues Presented on Appea l
The appellants/plaintiffs, Terminix International Company , L.P. and TruGreen, Inc., L.P., set forth three issues on appeal.1 The first and second issues stated by the app ellants specifically read as follows: 1. Wheth er the Feder al I nsec ti cide, Fungi cide, and Rodent ici de Act ( “FIFRA”) , 7 U.S. C. §§ 136- 136y (19 94 & Sup p. V 199 9), pr eem pts the T enne ssee D epa rtmen t of Lab or, D ivision o f Occ upa tional S afety and He alth (“TOSHA”), f

rom impos ing pers onal prote cti ve equi pment (“PPE”) r equir ement s upon profe ssi onal pest ici de applicators e ngaged in mixing, loading or a pplying federa lly regulated pesticides? 2. W hether § 4(b )(1) o f the fede ral O ccup ationa l Safety an d H ealth A ct (“O SH Act”) , 29 U .S.C. § 653(b)(1) (19 94), preempts TO SHA from imposing PPE requirements upon professional pesti cide applicators engaged in mixing, loading or a pplying federa lly regulated pesticides?

2 Appellants phrased the thi rd issue as f ollows: Whether the Chancery Court erred in aff irming the decis ion of

the Tenness ee Occupat ional Safe ty and Heal th Rev iew Commi ssi on th at TOSHA had jur isdi cti on or autho rity to issue c itations ag ainst P etitioner s-Ap pellan ts Te rminix I nterna tional C omp any, L.P . and T ruG reen, In c., L.P., for all eged violations of TOSH A PP E requirements supposedly applicable to professional pest icide applicators engaged in mixing, loading or a pplying pesticides?

3 Rev iew of e ach c itation re veals tha t Te rminix a nd T ruG reen w ere m erely cited for its em ploye es’ failure to abide by exi sti ng Federal law. There is n o refer ence to addi tional requir ements, labeli ng or PPE, that was imposed by the s tate that

was not lik ewise i mposed by federa l la w. -2- The first two issues can be paraphrased as follows: Whether the F ederal Insecticide, Fungicide, and Roden ticide A ct (“FI FRA”) a nd the Federal Oc cupation al Safet y a nd Health Administration Act (“FOSH”) preempt the Tenne ssee Depa rtme nt of Labor, Division of Occupational Safety and He alth (“ T OSHA”), from imposing personal protective equipment require ments upon prof

essional pestic ide applicators engaged in mixing, loading or applying federa lly r egulat ed pesticides? 1
The third issue can be paraphrased as follows : Whet her the Chancery Court and the Tennessee Occupational Safety and Health Review Commission (the “C ommission” ) 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 applica tors eng aged in

mixing, loa

ding or a pply ing pest icides? 2
This panel finds it unnecessary to determine whether theappella nts are or are not correct a s it pertain s to the fir st

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 cour t. 3
We have concluded tha t the only issue properly before this court is whether TOSHA has jurisdiction and/or authority to inspect the wor k place and, if appropr

i ate, to issue citations for alleged violations of requiremen ts applica ble to pro fessiona

l pesticid e applic ators engaged in mixing , loading or

applying pe s ticides in

the work place. T his Court f

inds that th

e third iss ue suffi ciently encompa sses the r

eal issue s. Backg

round of t he Case Appellan ts, Terminix International Company , L.P. ( “Te rmini x”) an d its corpo rate s ibli ng,4 The term “appli cator” r efers to a pers on, an employ ee, as dist ingui shed fr om a device.

5 The “cit ations ” iss ued set f orth numer ous viol ations . Each vi olati on stat ed with in a “ cita tion” is i dentif ied as an “it em.” Example, Citation No. 1, Item 3(b).

6 Each “c itation” cited Tru Gree n for numero us violations. -3- TruGreen, Inc., L .P. (“TruGreen”), are both hea d quartered and h ave ope rations in Memphis, Tennessee. The per

tinent na ture of Terminix’s business isresiden tial and c ommercia

l pest con trol. The pertinent nature of TruGreen’ s business is lawn andlandscape care. Both companies e mploy profess ional pes ticide ap

plicator s. 4
On June 25, 1997, a TOSHA representative inspected a TruGr een wor k si te in Memph

is, Tennessee. Following the inspection, TOSHA issued citations 5 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 ., i nclud ing a lleged violations of certain of TOSHA’s ge neral personal protect ion equipm

ent (“PPE ”) requ

irements

. 6
On July 16, 1997, a

TOSH A repre sentative

inspected a Terminix work site in Memphis, Tennessee. As a resu

lt 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 genera l PPE requir

ements.
Bothcompa nies contested the citations issued against them. Consequently , TOSHA filed a Complaint against Terminix and TruGreen before the Commission. Terminix and Tr uGr een thereafter challenged TOSHA’s jurisdiction to impose o

r enfor ce PPE requirements in connection withthe pesticide appli cators’ handling (i.e., mixing, loading or application) of pesticides, asserting that the EPA ha s exclusive

authority pursuant to FI FRA to est

ablish, th rough p esti cid e product l abeli ng, PPE requirements for pesticide applicators. I n support of their position, T erminix an d TruGreen relied u pon the Af

fidavit of the Admini strator o f Ag I nputs and Pesti cides for the Tennessee Department of Agriculture. In hisaffida vit, the Administrator stated that the Tennessee Departm ent of Ag ricultur e enfor ces EPA’ s PPE “labe

ling re quireme

nts” for pesticide applica tors.
After reviewing the parties ’ positio n papers concerning the jurisdictional issue, the Commission ruled that TOSHA was not preempted from inspecting or issui ng citationsagains t Terminix and TruGreen. The Commission found tha t “[t]here is no other

state ag ency

that is curren tly enforc ing saf

ety and hea lth standa rds in the state of Tenne ssee; the

refore , 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 on7 The pleading f iled by appellan ts was enti tled “ Petit ion for Writ of Certiorari and Statutory Appeal.” Ho weve r, the ple ading states it was filed pursu ant to T enn. C ode Ann. § § 4-5 -322 (a)(1 ) and (b)(1 ), the statute governing judicial r eview of orders of administ rative agencies , after

a contested case proceeding, under the Tenness ee Admin ist

rat ive Procedur es Act . The APA prov ides the proper method for judi cial revi ew in thi s cas e, n ot the common law or stat utory writ

of cert iorari procedures. The proceeding bef ore the Commis sion was a contes ted
case heari ng, Tenn. Code Ann. § 4-5- 102(3), gover ned by the APA. Furt her, the Commiss ion, in bot h it s Noti ce of Hearing and its fi nal order explained the method by which an aggrieved party coul d seek judicial revi ew, citi ng Tenn. Cod e Ann. § 4-5-322. The C ommission fil ed a certifi ed copy of its administ rative record, as r equired by the APA . None theless, at some po int counsel for the State resp onde nts began referring to the c ase as one b rought as a petition for co mm on law writ of ce rtiorari, p erhap s bec ause o f the title given the initial ple ading s. W e will treat this app eal as a rising from a T enn. C ode Ann. § 4-5-3 22 p roce eding in the trial co urt. W e note that T enn. C ode Ann. § 4-5-3 22( a)(1 ) autho rizes the review of “a p relimina ry, pro ced ural or interme diate a genc y action or ruling ” in cer tain circumstances. Appellant s’ ini tial petition sought review of such an order and cited that statut ory provision.

8 The tr ial court ’s order r efl ects tha t appe ll ants ’ pet it ion w as br ought

purs uant

to Tenn. Code Ann. § 4-5- 322(a).

9 Again, the amended petition, al though incorrectly tit led, sought revi ew under the Administrati ve pro ced ures A ct, Te nn. Co de A nn. §4 -5-32 2. -4- the j urisdictional issue. 7 The tria l court de

nied the m

otion for a stay of the Comm

ission’ s procee dings, but retained jurisdiction over the consolida

ted case s in the ev ent the r equest for judicial review w as renewed afte

r the Commis sion ente

red its final orde

rs. 8
The Co mm is si on he ar in gs to ok pl ac e o n J ul y 2 1-2 2, 1999. Th e Commission

issued its respective orders on October 22, 1999. The Commissionvacated several of the violations assessed by TOSHA, bu

t held tha t Terminix a

nd TruGr een had committed

certain violations

. On December 17, 1999, Terminix and TruGreen filed an amended petition for judicial revie w of both the preliminary

order and the October 22, 1999 final orders of the Commission. 9 Follo wing various procee dings, on June 13, 2 000, the Ch ancery Court issued its M emorandum Opinion. The Chancellor made

the following per

tinent de terminat ions:
The sole issue

before the cour t is whethe

r TOSHA ispreemp ted by th e Tennessee Department

of Agriculture from reg

ulating the work

place of Terminix and Trugreen. Petitioners contend that the Tennessee I nsecticide, Fungicideand Roden ticide Act; the Tenness ee Applic ation of Pe sticides A ct of 1978 ; and associ ated rules and regulations bestow subject matter jurisdiction in this area on the Tennessee Department of Agriculture.
* * * * *
Section 4(b) of the Occupat ional Safety and He alth Act, 29 U.S.C. § 658(b)(1)(1976) provides that “n othin g in this chapter shall apply to working conditions of employees with respect to which other federal ag encies . . . exerc ise authority to prescribe or enforce standar ds or regul a tions affecting occupational safety a nd health.”10 In its ord er, the trial c ourt ex plaine d its sco pe o f review using the com mon law writ o f certiora ri standa rd.

Un der tha t standa rd, rev iew is limited to whe ther the in ferior trib unal ex ceed ed its jur isdiction or ac ted illega lly, arbitra rily, or fraud ulently. Citizen s for C ollierville v . Tow n of C ollierville , 977 S.W .2d 3 21 ( Te nn. Ct. A pp. 1 998 ). The st andard for judi cial revi ew unde r th e Admini str ati ve Proce dures Act i s se t out in Tenn . Code Ann . § 4- 5- 322(h): The court may affirm the decisi on of the agency or remand the case for f urther proceedings. The court may revers e or modify the deci sion i f th e righ ts of the petiti oner have been prejudiced because the admini stra tiv e fi ndings, inf erences, conclus ions or deci sions are:
1. In violation of con stitutional or statutory provisions; 2. In ex cess o f the statuto ry autho rity of the ag ency; 3. Made upon unlawf

ul procedure ; 4. Arbitrary or ca pricious or ch aracterized b y abuse of discre tion or clearly unwarra nted exerc ise of di scre ti on; or 5. Unsu pporte d by ev idenc e whi ch i s bot h subs tant ial and mat eri al i n th e li ghtof t he ent ire recor d. In determining t

he substanti ality of evidence, the court shall t ake into account whatever i n the record fairly detracts f

rom its weight , but the court shall not s ubstitute its judgment f or that of t

he agen cy as to th e weigh t of the ev idenc e on q uestion s of fact.
The determinat

ive i ssue i n thi s case wa s a quest ion of l aw regardi ng the j uris dicti on of TOSH A, determi ned by rev iew and interpr etation of statutes. O n such issues, ther e is no re al differe nce in th e stand ards o f review

.

-5- * * * * *
In the instant case, a close reading of the rules promulgated by the Tennessee Department

of Agr iculture in dicate they a

pply specifica

lly to the labeling of pesticides and licensing of applicators. There is no mention of

employee wor

kplace sa fe ty. Nor are there any

rules that specific ally

cover th e area of occup ational sa

fety and health standards. (emphasis added)
There fore,

. . . this court is of the opinion that the Tennessee Occupational Safety and Health Review Com m ission’s decision to exercise subject matter jurisdiction over the workplace of Terminix and Trugree n should be affirmed. See Memorandum Opinion of the Chancery Court, entered June 13, 2000. 10
Standard of Review Upon appeal o f a deci sion take n by an admini strative

agency f ollowing a contes ted case procee ding, the stand ard of r eview in t his court is the same

as it i s in the chancery

court. Ware v. Green , 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) . Appella nts’ 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).-6--7- The Citations
Ini ti al ly, 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 nothave 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. Examp les of the citationspresent

ly a t issue ar e as follo ws:
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 exampl e given stated: “Employee inter views revealed that pesticide and termite technic ians did

notknow the company policie s on when to wear respiratory protection, such as when applying

pesticides in confined spaces or crawl spac es.”
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-ma sk cartridge respirators . . . not kept re asonably clea n; the inside of both respirators were dirty .”
In Citation 1, Item

3c., Ter minix was cit

ed for vi olating

29 CF R 1910.134(b)(6). The citation reads, “Respirators were not stored in a conve nient, clean and sanitary

location.” The example stated: “3M half-mask cartridge re spirators we re stored unprotected behind the service truck seats of one Pesticide Technician and one Termite Technician.”
In Citation 2, Item 1, TruGreen was c ited for violating 29 CFR 1910.132(d)(2). The citation reads, “There

was no wr

itten cer tification availa

ble to verify that a

workplace hazard assessment had been conducted to determine if haza rds are present which ne cessitat

e the use of personal protective equipment.” The example stated: “The personal protective equipment policy did not include the person who certified the hazard assessment evaluation or the d ate of the assessment. Personal protective equipment used by Pesticide

Specialists during application or tank filling included face shields, aprons, gloves, and boots.”
Pertinen t Feder al and Sta te Author ity Appellan ts correctly

assert that the Federal I nsecticide, Fungicide, and Rodenticide Act (“FI FRA”), 7 U.S.C. §§ 1 36-136y (1994 & S upp. V 199 9), and th e United S tates Environme nta l Protection Agency

(“EPA”) comprehensively regulate pesticides by

requiring pesticide

regist rants (i.e. pe sticide ma

nufactu rers) to include

EPA-specified PPE r

equirem ents and other precautionary information on EPA-approved labeling. Appell ants also correctly

assert th at fede

ral law, specific ally

Sec. 136v (b) of F

IFRA , 7 U.S.C. § 136v( b), ex press ly prohib its s tates from i mpos ing any requ ireme nts fo r pest icide label ing i n addition to or diff

erent f rom those required under FI

FRA by EPA. I

ndeed, Congre ss has excl

usively empowered

the Environmental Protection Agency (“EPA”) to regulate the labeling of many of the-8-

productsAppellan

ts usein their business. See 7 U.S.C. §§ 136-136y (FI FRA). By ena

cting FIF RA, Congre ss created a compr ehensive licensing and labe ling sch emefor pesticides and other poisonous devices designed to kill

harmful organisms. Worm v. American Cyanamid Co. , 970 F.2d 1301, 1305 (7 th Cir. 1992).
FIF RA preempt s state-imposed PPE r equirem ents if such r

equirem ents directly conflict

with Congre ss’ intent tha

t pesticid es be app lied in ac cordanc e with the requ ir ements set forth on each pesticide’s own nati onally uniform, EPA-appr

oved pro duct labe

ling, inc luding th

e PP E requirement s on suc h labe ling.
The State of Tennessee enacted the Tenne ssee Occupational Safety and Health Act of 1972, Tenn. Code Ann. §§ 50-3-101 et seq . The stat ed purpo se of this A

ct is: “to a ssure asfar as p ossible every working man and

woman in the state of Tennessee safe and healthful working conditions and to preserve our human resources.” Tenn. Cod e Ann. § 50 -3-102(

b). This was in co mpliance with FOSHA, 9 U.S.C. § 667, Sec. 18, which require s each st

ate to adopt re gulatio ns at least as effective and protective of workplace safety as federal regulations . (emphasis added). Providing an effective enforcement

pr ogram is on e of the way s the legislature intended to achieve this goa l. See Tenn. Code Ann. § 50-3-102(b)(7). Tenn. Code Ann. § 50-3-20 1 gran ts author ity t o the Dep artm ent of Labor and Workforc e Development

(“Depa rtment o f Labor”) to promulg ate reg ulations. The Depa

rtment of Labo r is authorized to develop occupational safety and health standards. Tenn. Code Ann. § 50-3-102. The Department

of Labor has adopted oc cupational safety and health stan dar ds, including the federal standards in the Code of Federal Regulations and other state standards, that covered

employ ers must meet. See Tenn. Code Ann. § 50-3-105(6). These lab or stand ards are intended to provide the highest degree of health and safety protection possible. (emphasis added). Tenn. Code Ann. § 50-3- 202. Sp ec if

ic al ly, Tennessee has adopted Section 5(a)(2) of FOSHA which require s compliance withstandards adopted by the U.S. Department of Labor, compiled

in 29 C.F.R ., 1900 se

ries, including subpartsof 1910 (w hich are at issue in

this appe al). The se standa rds were adopted into Tennessee’s regulations pursuant to the Commissioner’s statutory rule-making authority. See Tenn. Admin. Reg. 0800-1-1-.06.
Citations (violatio ns) for o verexposu re to spe cific ai

rborne t oxins, or combinations that are harmful, are imposed pu

rsuant to formulasset forth

in 29 C.F.R

. 1910.1000(d)(2) and it is the 1910 series that is principally at issue he rein.
Tennessee employers ar

e required, under Tenn. Code Ann. § 50-3-105(1) , to fu rnish employeesworking conditions free from recog nized hazards likely to cause ser ious injury or

harm by comply ing with o ccupati onal saf ety and hea lth standa rds or re gula

tio ns of the Department of Labor. TOSHA, and its compl iance officers/inspectors, have authority to enter workplaces to i nspec t-9-

andin vestigate w orking conditions. Tenn. Code Ann. § 50-3-301. Moreover, if an inspection reveal s violations of standards, the TOSHA compliance officer may issue a citation

. Tenn. Code Ann. § 50-3-307.
Feder al Preem ption Ana lys is
Whenever

a court must de te rmine whe ther fe deral la

w preempts state la

w, the court must “start with the assumption that the historic police powers of theStates were not to be superceded by the Federal Act unless that is the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp

. 331 U.S. 218, 230, 67 S.C t. 1146, 1152, 91 L.Ed. 1447 (1947) (citations omitted). When Congre ss provides a preemption clause, this presumption against preemption mandates that courts are to re ad su ch a c la us e n ar ro wl y. See Cip o llone v. Liggett Group, Inc. , 505 U.S. 5 04, 112 S.Ct. 2608, 120 L. Ed.2d 407 ( 1992). I n this cas e, Congr

ess has pr ovided a p

reemptio n clau se. See 7 U.S.C. § 136v(b).
Statutes must be construed to give effect to the intent and purpose of the legislation by considering the statutes as a whol e and g iving wo rds their common and ordinary

meaning. Crowe v. Ferguson , 814 S.W.2d 721, 723 (Tenn. 1991). A statute should be construed as a whole in light of its general purpose. City of Lenoir City v. State ex rel. City of Loudon , 571 S.W .2d 2 97, 299 (Tenn. 1978). In construing statutes, c ourt s must pr esume the legislature was aware of its prior enactme nts and the state of the law at the time of the legislation. Owens v. S tate , 908 S.W.2d 923, 926 (Tenn . 1995). Statutes are interpreted to give harmonious ef fect to all enactments when reasonably

possible. Jenkins

v. Loudon C

ounty , 736 S.W.2d 603, 608 (Tenn. 1987).
The United States Code provides, “A s tat e may regulate the sale or use of any federa lly registered pesticide or device in thestate, but only if and to the extent the regula tion does not permit anysale or use prohibited by this subchapter.” 7 U.S.C. 136v(a). (emphasis added). Review o f Section 136v, and cases pertaining thereto, cle arly establishes that states a re permitted

to inspect the saleor use of

pesticides. Wisconsin Public Intervenor v. Mortier , 501 U.S. 597, 611, 111 S.Ct. 2476, 2485, 11 5 L.Ed.2d 532,5 47 (1991) ; Kenepp v. American Edwards Laboratories, et al ., 859 F

. Sup p.809 (E.D. Pa. 1994). “[N]ot all state imposed requirements are preempted by FIFRA, onl y those state requireme

nts related to labeling.” Wright v. Dow Chemical U.S.A. , 845 F.Supp. 503, 511 (M.D. Tenn. 1993). Courts have held that FIF RA does not preempt state regulations addressing the saleand use of pesticides. See D-Con Co., Inc. v. Allenb y , 728 F.Supp. 605 (N.D. Calif. 1989) (FI FRAdid notpreempt California’s Safe Drinking Water and Toxic Enforc ement Act to extent that California Act merely

imposed restrictions on pesticide sale or use, without requiring additions or deletions from pes ticide la bels); Coparr, Ltd. v. City of Boulder , 942 F.2d 724 (10 th Cir. 1991) (FI FRAdid not preempt city pesticide ordina nce imposing

notifica tion requ irementson commercial pesticide applica

tors); Burke v. Dow Chemical U.S.A. , 797 F.Supp. 1128 (E.D. N.Y. 1 992) ( langua ge of FIFRA and statu te’s s avings clause indicated congressional design to leave state with expansive powers to regula

te pestic ides); Chemical Specialities Mfrs. Ass’n., Inc. v. Allenby , 744 F.Supp. 934 (N.D. Calif. 1990), aff’d , 958 F. Supp. F.2d 941, ce rt. denied , 506 U.S. 825, 113 S.Ct. 80, 121 L.Ed.2d 44, (California’s Proposition 65, dealing withstate re gulation of pesti cide sal e and use is-10-

notpreempted by F

IFRA); Burt

v. Fumigation Service and Supply, Inc . 926 F.Supp. 624, 628 (W.D. Mich. 1996)(“The legislat ive h istor y [ o f FIFRA] reiterates Congressional intent to deprive states only of authority related to packaging and labeling ”) (emphasis supplied.)
Based upon the f

orego ing, it is a

pparent that Cong

ress d id not intend to occupy the e ntire fie ld o f pestici de reg

ulation or enforc ement; ind

eed, it pr esumes a regula tory role for the state s. Therefore, since federa

l law expre ssly

permits a state to regulate the use of any federally registered pesticide or device, state jurisdiction is not displaced nor is it preempted by FIFRA or the EPA. TOSHA vs. Tenn. Dept. of Agriculture The appe

ll an ts insist tha

t the Tennessee D epartme nt of Ag ricultur e is the on

ly a gency in Tenness e e with the a

uthority to enfor ce EPA regulatio ns, thoug h they fail to cite author

ity whic h directly supports t

heir position. I

n an eff ort to make the

ir case , appella

nts assert that the Tennessee Department

of Agriculture is the alter eg o of the EPA and that TOSHA is the alter ego of OSHA, suggestinga parallel universe of sorts. Using this agency

“relationship” as an

infere nce, ap pellants assert that since the federal

model delegates regulatory responsibility of pesticides to the EPA, the state is obligated to do likewise.
The Chancellor found

that the rules promulgated by th e Tennessee Department of Ag riculture apply specifically to the labeling of pesticides and the licensing of applicators; however, he further found that ther

e is no men

tion in the Tennessee Depar tment of A gricul

ture re gulati ons that specific ally

encompa ss occupa

tional saf ety and hea lth standa rds for e mployees. We a

gree with the trial court’s c onclusion that the preemption provision of OSHA does not preclude TOSHA from enforcing regulations regarding the use of pe sticides which relate to the health and safety of workers employ ed by companie s enga

ged in that business. See 29 U.S.C. § 658(b)(1). The Department of Agriculture’s statutory authority and regulations promulgated there under do not cover “ spec ific wo rk in g c on di ti on s” an d d o n ot ad dr es s e mp lo yee wo rk pl ac e s af et y. The primary purpose

of the TOSH Act is: “to assure as far as possible every wor king man andwoman in the state of Tennessee safe and he althful working conditions and to preserve o u r human resources.” Tenn. Code Ann. § 50-3-102(b). Providing an effective enforce ment program is on e o f t he wa ys the leg islature intended to achieve this g oal. Tenn. Code Ann. § 50-3-102(b)(7).

It is readily appa

rent from our

legislative scheme t

hat our le gislatu

re rec ognized t

hat a sta te agency mu st be empowered to protect employ ees in the workplace. Review of the pertine n t authorities lead us to

the unmista

kable co nclusion t

hat TOSHA

has the ju

risdicti on, inde ed obligation, to protect the health an d safety of workers in the workplace from risk of injury in the workplace including, but not limited to, those pertaining to the use of pesticides. The fact the EPA andOSHA have chosen to delegate the r espective responsibilities differently does not preclude nor pr ee mp t t hi s o r a ny s ta te fr om de le ga ti ng th e r es po ns ib il it y an d j ur is di ct io n d if fe re nt ly.11 Appell ants Termini x and TruGr een we re ci ted f or f ail ure t o comply wit

h fe deral regu lations set for th i n 29 CFR 1910 et. seq., specif ical ly f aili ng to as sure t

heir e mployees’ safet

y and heal th, i.e. , to be ce rtai n that the proper respi rat ors we re us ed, t hat the feder all y manda ted r espi rat ors we re cl ean an d properl y stored (n ot thrown behin d a pick-u p truck s eat), that the employ ees were properly t rainedin the use of , and were required to use the fede rally
man dated respira tors, an d oth er fed erally req uired Per sona l Pro tective E quip men t (“PP E”) , ( See TOSHA Cit ati on No. 1, Items 3a, 3b and 3c) and for their fail ure to require a workplace hazard assessment (Cit ation No. 2, Item 1a.) -11- In Conclusion
Review of the foregoing facts and authorities makes it apparent that the appellants’ argument that TOSHA’s jurisdiction is preemptedmust fail. This is apparent for sev eral re asons inclu ding: (i) Congre ss did

not intend to occupy

the entire field of pesticide regulation, par ticularly the use of such in the wor

kplace; (ii) Cong

ress inte nded for the states to participate in the regulation and enforcement

of laws pe

rtaining to the use of pesticides; (iii) the fact that OSHA defers to the EPA for regulation and enforcement of pesticides on the federal level does not preclude TOSHA a nd the Tennessee Department of Agriculture fr om delegating responsibilities in a different manne r; and (iv) TOSHA did not cite

appella nts for ne w or additional s tate requirements for labeling or pac kaging of pestic ides, 11 to the contrary , TOSHA cited appellants for workplace safety violations involving appella nts’ failure to assure that their employees properly maintained, and/or wereproperly trained , and/or used the c orrect

persona l protec tive equi

pment in conjunction with the use of pesticides, as well as their failure to have a certified ha zard assessment program for the workplac e.
Ac co rd in gl y, we find the Tennessee Occupational Safe ty and Hea

lth Review Commission (TOSHA) has jurisd

iction to c onduct ins pectionsand to issue citations for violations which concern the safety of

pesticide applicators in the work place. Therefore, the judgment of the Chanc ery Court is aff irmed. Costs on ap

peal ar e taxed to th

e appell ants.

_________________________________ FRANK G. CLEME

NT, JR. SPECIAL JUDGE