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PESTICIDE PUB. POLICY v. VILLAGE

August 19, 1985

PESTICIDE PUBLIC POLICY FOUNDATION, AN ASSOCIATION INCORPORATED UNDER THE LAWS OF THE DISTRICT OF COLUMBIA, PLAINTIFF,
v.
VILLAGE OF WAUCONDA, ILLINOIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rovner, District Judge.

  MEMORANDUM OPINION AND ORDER

Plaintiff, the Pesticide Public Policy Foundation ("the Foundation"), challenges the validity of Village of Wauconda Ordinance No. 1984-0-31, which regulates the use of pesticides in the Village. The Foundation is a District of Columbia non-profit corporation whose members include professional lawn care, arborculture and pest control operators serving customers within Wauconda. Defendants are the Village of Wauconda, Illinois, Kenneth McGill, the Village President, and Jerry Bunce, Fred Dierker, James Eschenbauch, Steven Gurevitz, James Keagle, and Robert Ogren, Trustees of the Village of Wauconda.

The Wauconda ordinance requires "users of pesticides" to register and obtain a $25 per year permit from the Village. Ordinance No. 1984-0-31, § 7-12-2. "Users of pesticides" are defined as commercial pesticide applicators and landlords and tenants of buildings open to the public who apply pesticides on those building premises. § 7-12-1. The ordinance prohibits pesticide application when the wind velocity is greater than ten miles per hour, § 7-12-4, and requires that warning signs be posted for 72 hours after application. § 7-12-5. The ordinance specifies the type and number of signs to be posted after spraying indoors, outdoors, and on lawns or lakes. For example, where pesticides are applied to a lawn, the applicator must post a sign which states: "This lawn is chemically treated, keep children and pets off for 72 hours." § 7-12-5(B). The ordinance also regulates fogging; when that method of application is used, the user must give prior notice to abutting neighbors. § 7-12-5(C).

Each count in the complaint contains an identical prayer for relief. Plaintiff requests that this Court declare that Ordinance No. 1984-0-31 is invalid under Illinois law or federal law and the United States Constitution and therefore was void ab initio; enjoin defendants from enforcing the ordinance; declare that defendants are liable for costs and expenses incurred in complying with Ordinance No. 1984-0-31; and grant to plaintiff the costs of the instant lawsuit.

Presently before this Court are defendants' motion, pursuant to Fed.R.Civ.P. 12, to dismiss the complaint in its entirety, and plaintiff's motion, pursuant to Fed.R.Civ.P. 56, for summary judgment in its favor on Counts I-IV of the complaint.

For the reasons stated below, defendants' motion to dismiss is granted in part and denied in part, and summary judgment is granted in favor of plaintiff on Count III, with the exception noted below.

Discussion

As noted above, the first three counts of the complaint attack the authority of the Village of Wauconda to regulate pesticides. Count I of the complaint alleges that Ordinance No. 1984-0-31 was preempted by the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C.A. §§ 136-136y (1980 & Supp. 1984), pursuant to the Supremacy Clause of the United States Constitution, Art. VI, cl. 2. FIFRA regulates the registration, distribution, use and labelling of pesticides and the certification of pesticide applicators throughout the United States. Because federal courts have a "strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration," County Court of Ulster County, New York v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979), this Opinion will turn first to the counts of the complaint that are based on state law.

Count II of the complaint alleges that the Village of Wauconda, as a non-home rule unit, does not have the authority to regulate the use of pesticides or to license pesticide applicators, and that as a result, Ordinance No. 1984-0-31 is invalid. Where a federal district court confronts questions of Illinois substantive law under diversity jurisdiction, the outcome is, of course, controlled by Illinois law. Gates Rubber Co. v. USM Corp., 508 F.2d 603, 605 (7th Cir. 1975).

The scope of an Illinois municipality's power to legislate is determined by its status as either a home rule or a non-home rule unit. Home rule units "may exercise any power and perform any function pertaining to [their] government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt." Ill. Const. 1970, art. VII, § 6(a). Non-home rule units, however, "have only those powers expressly granted to them by the General Assembly or those necessarily implied from or incident to power expressly granted. . . ." Appeal Board of the Department of Environmental Control v. United States Steel Corp., 48 Ill.2d 575, 577, 272 N.E.2d 46, 48 (1971).

As discussed below, this Court finds that these two Illinois pesticide statutes preempt local governmental regulation in that area. Thus, although it is true that a general police power provision such as section 11-20-5 of the Illinois Municipal Code authorizes municipalities to legislate on a wide range of community health hazards,*fn1 it is unnecessary for this Court to decide whether, in the absence of the two Acts, the Village would have the authority to regulate pesticide use.

State Preemption

In Count III of the complaint, the Foundation asserts that the Wauconda ordinance is preempted by the Illinois Pesticide Act of 1979, Ill.Rev.Stat. ch. 5, §§ 801-828 (1983), and the Illinois Structural Pest Control Act, Ill.Rev.Stat. ch. 111-1/2, §§ 2201-2225 (1983). These statutes regulate the registration, distribution and use of pesticides and the licensing of pesticide applicators in the State of Illinois. According to plaintiff, neither Act authorizes or allows Illinois municipalities or units of local government to further regulate pesticides.

The purpose of the Illinois Pesticide Act of 1979 ("IPA") is "to regulate in the public interest the labeling, distribution, use and application of pesticides. . . ." Ill.Rev.Stat. ch. 5, § 802 (1983). The obligations of the Act are enforced by three Illinois State agencies: the Department of Agriculture administers the Act and supervises the registration of pesticides and agricultural uses; the Department of Public Health oversees structural or indoor pest control; and the Environmental Protection Agency enforces those provisions of the Act which protect the air and water. Ill.Rev.Stat. ch. 5, § 803. The Act provides for annual registration of pesticides, annual licensing of commercial applicators, and certification of applicators of restricted pesticides. Ill.Rev.Stat. ch. 5, §§ 806, 810, 811. The Act also prohibits handling or storing pesticides in an unsafe manner and disposing of pesticides or their containers in such a manner as to endanger public health or the environment or to pollute water supplies. Ill.Rev.Stat. ch. 5, § 814. The Director of Agriculture is further authorized to promulgate additional regulations concerning the storage, distribution and disposal of pesticides and their containers, the methods of pesticide application, and packaging. Ill.Rev.Stat. ch. 5, § 808.

The Structural Pest Control Act ("SPCA") similarly protects public health and welfare by extensive regulation of pesticides. As outlined in the general purposes section of the SPCA, the Act establishes minimum standards for selection, formulation and application of restricted pesticides. Ill.Rev.Stat. ch. 111-1/2, § 2202. It also requires licensing of commercial structural pest control businesses, registration of owners of property where restricted pesticides are used, and certification of pest control technicians. Id.

Defendants maintain that Ordinance No. 1984-0-31 is neither expressly nor impliedly preempted by the Illinois pesticide statutes. Defendants point out, correctly, that neither Act contains any language which specifically prohibits local governmental regulation in the field of pesticide control.

They further argue that the General Assembly's lack of intent to preempt local pesticide regulation can be seen by comparing the pesticide acts with two statutes which do preempt local regulation. Defendants give as an example the Illinois Environmental Protection Act ("EPA"), which states that its purpose is "to establish a unified state-wide program." Ill.Rev.Stat. ch. 111 1/2, §§ 1001, 1002(b) (1983). They also point to the State Insurance Code, which states that the powers enumerated in that Code "shall not be exercised concurrently, either directly or indirectly, by any unit of local government," as an example of specific intent to preempt. Ill.Rev.Stat. ch. 73, § 614.1 (1975), quoted in Prudential Insurance Company of America v. City of Chicago, 66 Ill.2d 437, 6 Ill.Dec. 199, 200, 362 N.E.2d 1021, 1022 (1977).

In addition, defendants observe that the SPCA states that its purpose is to provide for "the establishment of minimum standards" for the use of restricted pesticides. Ill.Rev.Stat. ch. 111 1/2, § 2202 (emphasis added). Defendants argue that this language demonstrates that the General Assembly intended only to establish minimum criteria for pesticide use, which then could be supplemented by other governmental units.

Defendants' arguments are not persuasive to this Court. "As applied to state action versus local action, preemption means that where the legislature has adopted a scheme for regulation of a given subject, local legislative control over such phases of the subject as are covered by state regulation ceases." Hutchcraft Van Services, Inc. v. City of Urbana Human Relations Commission, 104 Ill. App.3d 817, 823, 60 Ill.Dec. 532, 536, 433 N.E.2d 329, 333 (1982).

It is essential to any discussion of state law preemption in Illinois to recognize that there are two separate preemption standards for home rule and non-home rule units. In County of Cook v. John Sexton Contractors Co., 75 Ill.2d 494, 27 Ill.Dec. 489, 389 N.E.2d 553 (1979), the Illinois Supreme Court held that the Illinois Environmental Protection Act did not preempt a home rule county from regulating sanitary landfills in the county through its zoning restrictions. In Sexton, the Court stressed an Illinois constitutional provision which states: "Home rule units may exercise concurrently with the State any power of a home rule unit to the extent that the General Assembly does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive." Ill. Const. art. VII, § 6(i) (emphasis added). Under the Illinois Constitution, in order to preempt a home rule unit's exercise of legislative power, the General Assembly must expressly state that it is doing so in the statute. In contrast, the Illinois Supreme Court had held previously, in Carlson v. Village of Worth, 62 Ill.2d 406, 343 N.E.2d 493 (1975),*fn2 that the State EPA does preempt non-home rule units from regulating sanitary landfills.

With regard to a non-home rule unit like the Village of Wauconda, then, legislative intent to preempt may be implied. "[E]xclusivity may be expressed in other ways, notably by enactment of a comprehensive regulatory scheme. . . ." Hutchcraft, 104 Ill. App.3d at 823, 60 Ill.Dec. at 536, 433 N.E.2d at 333, quoting Illinois Liquor Control Commission v. City of Joliet, 26 Ill. App.3d 27, 32, 324 N.E.2d 453, 456 (1975) (citations omitted). It is well established that "[w]here the General Assembly has established applicable standards governing the regulation of certain areas, municipalities are not generally authorized to enact more restrictive regulations in the absence of specific authority to do so." Dolson Outdoor Advertising Co. v. City of Macomb, 46 Ill. App.3d 116, 121, 4 Ill.Dec. 692, 695, 360 N.E.2d 805, 808 (1977), citing American Smelting & Refining Co. v. County of Knox, 60 Ill.2d 133, 324 N.E.2d 398 (1974).

In Dolson, the court inferred legislative intent to preempt from a comprehensive regulatory scheme. The plaintiff in Dolson had obtained a permit to erect off-premise advertising from the Illinois Department of Transportation, pursuant to the Illinois Highway Advertising Control Act, Ill.Rev.Stat. ch. 121, § 514.01 (1975). Defendant, the City of Macomb, a non-home rule municipality, had enacted a zoning ordinance which prohibited billboards in certain areas. Dolson, 46 Ill. App.3d at 117, 4 Ill.Dec. at 693, 360 N.E.2d at 806. Thus, although the plaintiff company had obtained a State permit, it was denied the requisite city permit. The court concluded that the municipality's ordinance was void in the face of comprehensive State regulation of highway advertising. Id. 46 Ill. App.3d at 121, 4 Ill.Dec. at 696, 360 N.E.2d at 809.

Similarly, in Union National Bank and Trust Co. v. Board of Supervisors of Kendall County, 65 Ill. App.3d 1004, 22 Ill.Dec. 627, 382 N.E.2d 1382 (1978), the court noted that "[w]here the General Assembly provides for `comprehensive regulation' of an activity, it thereby implies `that municipalities have no power to regulate this activity.'" Id. at 1008, 22 Ill.Dec. at 630, 382 N.E.2d at 1385 (citation omitted). In Union National, Kendall County, a non-home rule county, applied its zoning ordinance to deny plaintiffs' right to stripmine limestone on their property pursuant to a permit issued by the State under the Reclamation Act, Ill.Rev.Stat. ch. 96 1/2, § 4501, et seq. (1977). The court held that the General Assembly, by enacting a comprehensive regulatory scheme regarding surface mining and reclamation, implied that non-home rule units of local government should have no power to regulate this activity. Union National, 65 Ill. App.3d at 1008, 22 Ill.Dec. at 630, 382 N.E.2d at 1385.*fn3

Furthermore, courts also look to factors other than the comprehensiveness of a State regulatory scheme to infer State preemption. "Municipalities cannot . . . adopt ordinances under a general grant of power which infringe upon the spirit of the State law. . . ." Village of Mundelein v. Hartnett, 117 Ill. App.3d 1011, 1015, 73 Ill.Dec. 285, 288, 454 N.E.2d 29, 32 (1983). For example, in Carlson v. Village of Worth, 62 Ill.2d at 409, 343 N.E.2d at 495, where the Illinois Supreme Court held that the State EPA preempted a non-home rule unit from regulating sanitary landfills, the court implied ...


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