Virginia BS Cases Summary Table 

Here are all known (to me) state and federal BS and Reverse Preemption related cases in Virginia 

1995 
Welch v. Rappahannock (USDC, WD.Va., Charlottesville)

Dispositive Pleading 

Issues litigated

Bench – Magistrate.J. Crigler
860 FSupp 328 (1994)

Bench – Judge Michael
888 F.Supp 753 (1995)

Cross-motions for Summary Judgment






Hazel & Thomas for BS-Farmers


Gilliam & Scott for County

:- Farmers sued County over sludge ban ordinances. Ordinance

:-  Farmers argue CWA preempts County and allows sludging.

:-  Farmers argue local ban allowed only if OK’d on case-by-case basis by EPA or state

County’s SJ motion GRANTED

:-        CWA establishes national policy to clean up waters.

:-        Sludge is a “polluant.”

:-        Cites CWA 33 USC §1345(d) – sludge disposal is a “local determination.”

:-        Choice of a sludge disposal practice is local, EPA just established regulations for all types of disposal.

:-        County ordinance not preempted by CWA.

SJ AFFIRMED

:-        Supremacy Clause allows fed law to preempt state and local law.

:-        Determination of manner of sludge disposal is a local determination.

:-        EPA found land-sludge less carcinogenic.

:-        This case distinguished from ENSCO 807 F2d 743 (8CA, 1986) because in this case County did not ban sludge, just chose how to dispose of it.

:-        CWA does not promote land-sludge. EPA does, but that does not control.

:-        In spite of Evanylo’s affidavit for P’s, County presented enough evidence of health concerns that benefits of a ban on land-sludge are not illusory.

:-        There is rational basis for belief that ban will protect citizens.

:-        Banning land sludge does not adversely affect interstate commerce.

Held
County ordinance not preempted by CWA.

Not appealed to 4CA. No sludge has been imported into Rappahannock.


2001
Synagro-WWT, Inc. v. Louisa County et al. (USDC, WD.Va., Charlottesville)

Dispositive Pleadings

Issues litigated

Bench – Michael, J.

Appeals

P’s Motion for Preliminary injunction

Decided 2001


.:-       Synagro (P) sued County (D) in USDC (diversity) for declaratory and injunctive relief claiming County ordinances ultra vires and void as per Dillion’s rule.

:-        Ordinances required applicator to submit nutrient plan, gave County right to determine setbacks, 30-day notice signs for application, delay of application if conflict w/ community events, performance bond to County, etc. Did not ban.

:-        Synagro claims County requirement for nutrient plan conflicts w/ §32.1-164.5.C.8 and County setbacks conflict w/ BUR 510.A.3.(c)(2).Synagro alleges enforcement or ord’s during litigation will cause irreparable harm

Preliminary injunction GRANTED 

:-        Blackwelder 4-factors test applied.

:-        Synagro would lose $12,000 due to 30 day sign rule.

:-        Setbacks, would “not be without cost.”

:-        Synagro cannot recover these loses from County – sovereign immunity.

:-        Synagro cannot meet its obligations to third parties under these ordinances. Ergo, lost good will.

:-        Enforcement of state BURs alleviates potential for harm to public health.

:-        Since citizens have tolerated sludge up to now, they can tolerate it a bit longer.

:-        Synagro faces much greater potential harm than County.

:-        County’s fears of harm to the water are unproven or overstated.

:-        Public’s interest is in having local ordinances compatible with state law.

None found.

D’s. Motion to Dismiss

Decided 2001

County filed motion to dismiss because diversity amount in controversy not met. ($75,000)

Motion to dismiss DENIED 

:-        P’s statement of damages in excess of $75,000 generally controls jurisdictional amount.

:-        Synagro claims impairment of contracts, loss of privileges provided by permits, inability to plan business activities, etc.

:-        Lack of claim for monetary damages not determinative of diversity.

None found


2001
Blanton v. Amelia County (Virginia Circuit Court, Amelia County)

Dispositive Pleading 

Issues litigated

Bench – Judge Warren

Appeals – Hassell, J
 261 Va 55  (VaSCt, 2001)

Joint SJ Motions




L.Lee Byrd, Sands Anderson Marks & Miller for Louisa


Bill Broaddus, McGuire Woods for Blanton

:-        Farmers (P) sued County (D) for declaratory and injunctive relief claiming County ordinances banning land application of sludge.

:-        County argued that it has right and authority to ban land application, and that ordinances not contrary to state law.

Amelia County Circuit – not reported.


County’s SJ GRANTED

 SJ REVERSED

:-        Va Code § 1-13.17 says ordinances must not be inconsistent w/ state law, etc.

:-        Va § 32.1-165.5 says land application OK w/ permit.

:-        Va BURs regulate state land application.

:-        A local gov’t may not forbid what the state authorizes.

:-        Local ord’s cannot conflict w/ BURs.

[Does not mention Dillon, Rapphannock, or any federal statute or issue. No mention of reverse preemption or any federal law.]


2001
Bristol v. Earley, (USDC, WD.Va., Abingdon)

Dispositive Pleadings

Issues litigated

Bench – Judge Jones
 145 F.Supp 2d 741 (2001)

Appeals

D’s motion to dismiss and P”s motion for SJ,

decided 2001

:-        City wanted to enter telecommunications market, but prohibited by state statute.

:-        City (P) sued Va AG (D) for declaratory j, on grounds that federal Telecommunications Act allows “any entity” to enter market. This preempts state law.

P’s motion for SJ GRANTED

:-        City has standing to sue in its own name.

:-        Va. is not proper defendant, but AG is.

:-         Fed. statute preempts the state statute, therefore state cannot stop City from entering the market. Dillion’s Rule does not change this legal fact.

:-        Agency interpretation of fed statute is not binding on the Court.

:-        No violation of Xth Amend. because feds can regulate interstate comm, i.e. telecommunications.

Held
The state cannot prohibit City from entering telecommunications market because the state statute is preempted by federal law. [reverse preemption]

Mooted by 2002 amendments to 15.2-1599(B)


2004
O’Brien et al. v. Appomattox, (USDC, WD.Va., Lynchburg)

Dispositive Pleadings 

Issues litigated

Bench – Judge Moon
213 F.Supp.2d 627 (2002)
293 F.Supp.2d 660(2003)

Appeals -- Fourth Circuit

P’s Motion for Preliminary Injunction, 2002





James Slaughter, Beveridge & Diamond, for Farmers


L.Lee Byrd, Sands, Anderson, Marks & Miller for County 

:-    County Sludge Ord #1 – sludge zoning “over-lay.”

:-    County Sludge Ord #2 – police powers – contractor bond, injection only, huge offsets, etc.

:-   Farmers sued County for declaratory and injunctive relief.

:-     Farmers argue that Fed. CWA and EPA BURs set regulatory framework for sludge application and preempts County ord’s.

:-     Farmers filed for temporary injunction to prohibit enforcement of sludge ordinances.

Prelim injxn GRANTED.

:-    VDH has granted sludge permits to Synagro and NutriBlend.

:-   Under Blackwelder analysis, hardship lies with Farmers.

:-   Farmers will lose $80,000 and environmental and conservation benefits of sludge.

:-   There is no evidence of record that biosolids harm environment.

:-   Adverse health effects speculative – therefore all County has is fear of adverse health effects. – does not rise to injury in fact.

:-   Fed and state authorities have determined that sludge can be safely used on farmland.

:-   Cites Amelia County for proposition county can not forbid what state authorizes.

:-   Cites 2001 statute § 62.1-44.19:3(C) and AG Opinion 01-085 as expressly limiting localities power to regulate sludge.

:-   Cites 2002 SB 618, which would have given localities power to ban sludge. Not passed.

Held:

1.  Counties only have power to monitor and test sludge.

2.   County ordinances are de facto ban on land-sludge.

3.   Sludge effects on public health speculative; therefore, public’s interest in ensuring compatibility of local ordinances w/ state law trumps health conerns, citing Louisa.

CA4, 2003. 02-2019 Unpublished, per curiam. Michael, King, Wooten.

Prelim injxn AFFIRMED

:-          Given widespread use of sludge, Gen. Assmb examinations, USEPA regulations and examinations, scientific studies – the fear of adverse health effects is “too attenuated at this time” to outweigh harm to Farmers.

:-          Because VDH and USEPA regulate land-sludge, public interest favors Farmers.

Complaint, P’s motion for SJ

decided 2004

 

P’s motion GRANTED/DENIED

D’s motion DENIED.

:-          Court declines to decide issue of CWA preempting County ord’s. [Reverse preemption not mentioned even though briefed.]

HELD

:-          Amelia, 2001 applied as “on point.” State law preempts County ord’s. Counties cannot prohibit permitted sludge application.

:-          AG Op 01-085 applied. Counties can only test and monitor.

:-          Penalty provisions of Sludge Ord #2 is void because it is contrary to § 15.2-1429.

:-          Both Sludge Ords outlaw land-sludge are void and unenforceable.

None


2005
Va Office for Protection and Advocacy v. Reinhard (Va. Dept Mental Health)  (USDC, ED.Va. Richmond)                                             

Dispositive Pleading

Issues litigated

Bench - Judge Williams

Appeals 

VOPA moved for atty fees under § 1988 Can one state agency sue another state agency under 42 §USC 1983 and get atty fees? :-  Entered Prelim Injunction ordering Reinhard to turn over mental health info to VOPA

:-  Entered merits order on settlement of dispute.

:-  VaOPA can sue Dept Mental Health under §1983 and get atty fees under §1988. $16,000 fees awarded.
Appeal -- 405F3d185 (4 CA, 2005) -- Vacated award of atty fees.

:-
VOPA is not a “person” under § 1983 and cannot sue.

:-Explicitly leaves open question of state agency suing under § 1983 as representative of one or more individuals.

 

 

 

Appeal --  563US ___(USSCt, 2011)  -- Reversed/remanded

In order to invoke the Ex parte Young exception, a state agency needs both a federal right that it possesses against its parent State and authority to sue state officials to enforce that right, free from any internal state-government veto; such conditions rarely coincide.



2007
Wyatt et al. v. Sussex Surry and Synagro,  (USDC, EDVa, 2007)                                            

Dispositive Pleading

Issues litigated

Bench - Judge Hudson
482 F.Supp2d 740

Appeals 

 P's motion to remand to state court

 


P's attorneys: H. Bishop Dansby, Chris Nidel, & Stephen Rubin

 

D's attorneys:
James Slaughter et al. (a.k.a. King of Sludge) 

Sandra Wyatt, her husband, son, and others (P) sued BS-slingers Sussex Surry LLC and Synagro (D) for damages they suffered as a result of sludge being spread on property adjacent to theirs.  The claims were nuisance, trespass, and negligence -- all based on state law.   Sandra's and her husband Willis' health were seriously affected by the sludge.  Both developed respiratory problems.  Sandra and Willis, who were in good health before the sludge started to fly in 2005 both died in 2009 before the suit was concluded.

D's removed the case to USDC EDVa. on the grounds that the suit was federal subject matter because the Clean Water Act preempted the P's state-law claims and that Sussex was an in-state defendant fraudulently added to destroy diversity.  

 

HELD:

:-  The argument that Sussex Surry was fraudulently added as a D is total pig-poo.  SS owned the land the sludge was spread on, of course they are a proper D.  Slaughter should have been sanctioned for this argument.   

:-   The D's preemption argument is also pig-poo.  The CWA does not preempt state common-law claims, such as those in this case.  There is no need to interpret any federal law to dispose of P's claims.

Remanded to state court

 

 

Not appealed.  
 

2007
Wyatt et al. v. Sussex Surry and Synagro, (Cir. Ct. of Surry County Va.,)                                            

Dispositive Pleading

Issues litigated

Bench - Wm. Allen Sharrett 
Case CL 06-6900

Appeals 

 D's motion to dismiss and demurrer.

Attorneys, above.

 Upon remand to the state court, D's filed a motion to dismiss and demurrer, arguing .

:-   State regulations preempt the P's common-law tort claims. 

:-    The P's claims are preempted by the Right to Farm Act.

:-   The P's claims are preempted by the CWA. 

:-    The P's claims are preempted by Va. biosolids use regulations.

:-    State law preempt P's claim for an injunction.

:-    There is no trespass claim because only odor is alleged.

:-    One P should be dismissed because she does not own the land in question.

:-   It is not proper to plead punitive damages as a claim. 

 

Held:

:-    The state sludge laws and regulations do not preempt common-law tort claims because they do not expressly do so.

:-    This is another bs claim because the RTFA expressly excludes nuisances resulting from negligent or improper operations.  Also the RTFA does not address the trespass or negligence claims. 

:-    The CWA does not preempt state common law claims, citing 4th Circuit law.

:-    Va. biosolids use regulations do not preempt common-law tort claims.

:-    State law preempts an injunction preventing dumping sludge, citing Blanton, above.

:-   P's cannot maintain the claim of trespass due to odors and molecules.  The proper claim is nuisance.

:-    One plaintiff dismissed because she did not have possessory interest in the subject property. 

:-    Punitive damages cannot be pled as a claim, must be prayed for in relation to a claim of an intentional tort. 

D's Motion to Dismiss and Demurrer denied.

 

Not appealed 

 

Virginia Attorney General Opinions

2002 -- Opinion of the Attorney General 2002 Va. AG 67, 69, 01-085, ___ 
In light of these statutes and the comprehensive state program regulating the use of biosolids in the Commonwealth, it is apparent that the state occupies the field of sewage sludge disposal, treatment and management. Accordingly, it is my opinion that a local ordinance requiring an applicant to obtain a conditional use permit before applying or storing biosolids in the locality is preempted by the comprehensive state program

1984 -- Opinion of the Attorney General 83-84 Va. AG 86, 88  
Taking all of the above into consideration, I am of the opinion that a county has the power under § 15.1-510 to adopt ordinances regulating or prohibiting the spreading of sewage sludges and other wastes on farm land in the county.

 

 

Copyright, 2005 - 2012, Denis O'Brien (aka The Gutter Grunt).  All rights reserved.