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Citizens for a Better St. Clair County v. James

Citation: 11 ELR 20665
No. No. 80-7223, 648 F.2d 246/16 ERC 1911/(5th Cir., 06/15/1981)

In an action by local residents to enjoin Alabama from acquiring a prison site and issuing a national pollutant discharge elimination system (NPDES) permit without preparing an environmental impact statement, the court affirms an award of summary judgment for the defendants. It holds that the state's acquisition of the site is not a major federal action under the National Environmental Policy Act. Neither the receipt by the state's corrections program of federal grants nor the existence of a federal court order to construct more prisons give the state's acquisition of the site a sufficiently federal character. A response by the Alabama Water Improvement Commission to an inquiry concerning the feasibility of discharging treated wastes from the prison similarly is not a major federal action where no application has yet been made for an NPDES permit. The court adds that the pendency of discovery requests did not preclude the granting of summary judgment since the evidence sought would have raised no material questions of fact and the correctness of defendants' affidavit on a material issue was not challenged.

Counsel for Appellants
William J. Baxley, William K. Davenport
Baxley, Stuart, Ward & Dillard
Suite 200, 1933 Montgomery Hwy., Birmingham AL 35209
(205) 939-0275

Counsel for Appellees
Henry I. Frohsin, Ass't AOEO Attorney
200 Fed. Bldg., 1800 5th Ave. N., Birmingham AL 35203
(205) 254-1785

R. Craig Kneisel, Ass't Attorney General
State Administrative Bldg., Montgomery AL 36130
(205) 834-5150

Gail Osherenko
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4519

Before JONES, TJOFLAT and ANDERSON, Circuit Judges.