Tommy O’brien v.  Appomattox County, Virginia

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 TOMMY O’BRIEN; CHARLES S. BRAND;
DANIEL A. CASH; LOUIS FOSTER;
GLOVER GILLIAM; R. G. STEWART;
TRIPLE R FARMS; ROGER WALTON;
WINSTON WALTON; ROBERT C.
WINSTON; W AND W FARM,
Plaintiffs-Appellees,
v. No. 02-2019 
APPOMATTOX COUNTY, VIRGINIA;
BOARD OF SUPERVISORS OF
APPOMATTOX COUNTY, VIRGINIA;
DARRELL A. CARROLL, JR., County
Administrator of Appomattox
County, Virginia,
Defendants-Appellants. 
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(CA-02-43-6)
Argued: April 1, 2003
Decided: July 24, 2003
Before MICHAEL and KING, Circuit Judges, and
Terry L. WOOTEN, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.

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COUNSEL
ARGUED: Robert A. Dybing, SHUFORD, RUBIN & GIBNEY,
Richmond, Virginia, for Appellants. James Bruce Slaughter, BEVER-
IDGE & DIAMOND, P.C., Washington, D.C., for Appellees. ON
BRIEF: L. Lee Byrd, Margaret Ann Neil Cosby, SANDS, ANDER-
SON, MARKS & MILLER, P.C., Richmond, Virginia, for Appel-
lants. Anthony L. Michaels, Cindy L. Squires, BEVERIDGE &
DIAMOND, P.C., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
On June 28, 2002, eleven farmers and farms from Appomattox
County, Virginia (collectively "the Farmers") filed suit against Appo-
mattox County, the County Board of Supervisors, and the County
Administrator (collectively "the County") to challenge two County
ordinances that relate to the use of biosolids.1 The District Court for
the Western District of Virginia issued a preliminary injunction
against the County prohibiting it from enforcing the biosolids ordi-
nances. The County appeals to this Court from the entry of the injunc-
tion order, maintaining that it should be vacated. As explained below,
the District Court did not abuse its discretion, and we affirm.
I.
The Farmers are all either residents of Appomattox County who
1Biosolids are primarily organic materials produced during wastewater
treatment which may be used to add or replenish nutrients to the soil.
They can be used as a substitute for commercial fertilizer on agricultural
land, forests, rangelands, or on disturbed land in need of reclamation.
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engage in farming activities or business entities that own or lease
farmland in Appomattox County. In the summer of 2001, the Farmers
began a lengthy permitting process with the Virginia Department of
Health ("VDH") to obtain permits to apply biosolids to their farm-
land. The Farmers provided detailed information to VDH about their
fields, soils, and proposed use of biosolids in two separate applica-
tions. VDH provided this information to the County and the County
requested some changes in the proposed use of biosolids, which were
accommodated. Permits for land application of biosolids on the Farm-
ers’ land were issued on March 29, 2002.
Beginning September 4, 2001, the County held a number of public
hearings regarding the possibility of regulating the land application of
biosolids. On February 4, 2002, and March 18, 2002, the County
Board of Supervisors adopted two ordinances that restricted and regu-
lated land application of biosolids. Despite the existence of the per-
mits, the Farmers alleged that the County’s ordinances effectively
prohibited the application of biosolids and they filed this lawsuit.
On July 15, 2002, the Farmers sought a preliminary injunction bar-
ring the County from implementing or enforcing ordinances that
interfere with land application of biosolids in Appomattox County. At
the evidentiary hearing before the District Court on July 30, 2002, the
Farmers presented three witnesses and six exhibits in support of the
preliminary injunction motion. The County cross-examined the Farm-
ers’ witnesses and submitted two exhibits. On August 2, 2002, the
District Court issued an opinion granting in part and denying in part
the Farmers’ motion for a preliminary injunction. O’Brien v. Appo-
mattox County, 213 F.Supp.2d 627 (W.D.Va. Aug. 2, 2002). In its
memorandum opinion, the District Court enjoined and prohibited the
County from enforcing the biosolids ordinances with regard to the
named plaintiffs, but allowed a number of general restrictions on the
land application of biosolids to remain in effect.
The County filed a timely notice of appeal.
II.
This Court reviews the grant or denial of a preliminary injunction
for abuse of discretion, recognizing that preliminary injunctions are
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"extraordinary remedies involving the exercise of very far-reaching
power to be granted only sparingly and in limited circumstances."
MicroStrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir.
2001) (internal quotation marks omitted). We accept the District
Court’s findings of fact absent clear error, but review its legal conclu-
sions de novo. Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 511
(4th Cir. 2002). This standard is "not a rule of perfunctory appellate
review but one of careful scrutiny." Direx Israel, Ltd. v. Breakthrough
Med. Corp., 952 F.2d 802, 815 (4th Cir. 1991).
III.
In this Circuit, the entry of a preliminary injunction is governed by
the four-part test set forth in Blackwelder Furniture Co. of Statesville,
Inc. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977). The four
Blackwelder factors are: (1) the likelihood of irreparable harm to the
plaintiff if the preliminary injunction is denied, (2) the likelihood of
harm to the defendant if the requested relief is granted, (3) the likeli-
hood that the plaintiff will succeed on the merits, and (4) the public
interest. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359
(4th Cir. 1991) (internal quotation marks omitted).
In applying Blackwelder, a court must first "balance the likelihood
of irreparable harm to the plaintiff against the likelihood of harm to
the defendant." MicroStrategy, Inc., 245 F.3d at 339 (quoting Black-
welder, 550 F.2d at 195). If this balance of hardships "tips decidedly
in favor of the plaintiff," Rum Creek Coal Sales, 926 F.2d at 359, then
it will typically "be enough that the plaintiff has raised questions
going to the merits so serious, substantial, difficult and doubtful, as
to make them fair ground for litigation and thus for more deliberate
investigation." Blackwelder, 550 F.2d at 195 (internal quotation
marks omitted). But if the balance of hardships is substantially equal
between the plaintiff and defendant, then "the probability of success
begins to assume real significance, and interim relief is more likely
to require a clear showing of a likelihood of success." Direx, 952 F.2d
at 808 (internal quotation marks omitted).
In its memorandum opinion, the District Court found that the
Farmers "will suffer immediate, significant, and acute irreparable
harms if their motion for an injunction is denied." Tommy O’Brien,
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et al. v. Appomattox County, Virginia, et al., Civ. No. 6:02-0043
(W.D.Va. August 2, 2002) (J.A. 510). First, without preliminary
relief, the Farmers would suffer economic losses that they may or
may not be able to recover through pending litigation. These eco-
nomic losses include lost profits from reduced crop yields and the
expense of replacing biosolids, which are free, with commercial fertil-
izers. Second, an injury to the environment from the increased use of
chemical fertilizers would accompany a ban on biosolids. And third,
the Farmers would be forced to delay the potential long-term benefits
to the soil that biosolids may provide.
The County argues that granting the preliminary injunction motion
will cause them certain, irreparable harms. Specifically, the County
argues that citizens of Appomattox County will be exposed to strong
and offensive odors associated with the application of biosolids. Fur-
ther, the County cites possible adverse health effects associated with
biosolid use. The District Court weighed these concerns and deter-
mined that "instead of suffering any immediate, irreparable harm, [the
County] only face[s] the potential for uncertain, future injuries — the
fear of possible, adverse health effects." Tommy O’Brien, et al. v.
Appomattox County, Virginia, et al., Civ. No. 6:02-0043 (W.D.Va.
August 2, 2002) (J.A. 510). Applying the first two factors of the
Blackwelder analysis, the District Court determined that the County’s
prospective fears are not as certain, identifiable, or as severe as the
damages claimed by the Farmers and that the balance tips strongly in
the Farmers’ favor. In light of the widespread use of biosolids in Vir-
ginia and elsewhere in the United States, the regulations and examina-
tions undertaken by the Virginia General Assembly and the United
States Environmental Protection Agency ("U.S. EPA"), and the
studies by the scientific community, the fear of possible, adverse
health effects is too attenuated at this time to outweigh the likelihood
of harm to the Farmers. We therefore conclude that in balancing these
potential hardships, the District Court did not err in finding that the
balance tipped "strongly" in favor of the Farmers.
Having established that the balance of hardships clearly weighed in
favor of the Farmers, the next question is the Farmers’ likelihood of
success on the merits. Pursuant to the law in this Circuit, if the bal-
ance of harm tips strongly in favor of the plaintiff, a preliminary
injunction will be granted "if the plaintiff has raised questions going
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to the merits so serious, substantial, difficult and doubtful, as to make
them fair ground for litigation and thus for more deliberate investiga-
tion." Rum Creek Coal Sales, 926 F.2d at 359. In other words, the
plaintiff’s case must present a "substantial question." In its memoran-
dum opinion, the District Court reviewed the Virginia Supreme
Court’s decision in Blanton v. Amelia County,2 the legislation enacted
by the Virginia General Assembly limiting the role of counties in reg-
ulating biosolids, and the effect of these ordinances on land-
application of biosolids. In light of the recent decisions by the Vir-
ginia Supreme Court and the Virginia General Assembly, we cannot
conclude that the District Court erred in determining that the claims
and evidence provided by the Farmers raise such serious, substantial,
and difficult issues that they warrant more deliberate investigation.
Finally, the District Court determined that because the VDH and
the U.S. EPA currently regulate the land-application of biosolids and
will continue to do so during the pendency of this litigation, the pub-
lic interest favors the granting of the injunction until a determination
on the merits can be completed. We conclude that the District Court
did not abuse its discretion in reaching this conclusion.
IV.
Having reviewed the record, the parties’ briefs, and the Black-
welder factors, and having had the benefit of oral argument, we con-
clude that the District Court did not abuse its discretion in awarding
the Farmers the preliminary injunction against the County. Accord-
ingly, we affirm.
AFFIRMED
2Blanton v. Amelia County, 540 S.E.2d 869 (Va. 2001).
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