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Monarch Chem. Works, Inc. v. Thone

Citation: 9 ELR 20697
No. No. 79-1181, 604 F.2d 1083/13 ERC 1713/(8th Cir., 08/16/1979) Aff'd

The Eighth Circuit Court of Appeals affirms a lower court's refusal, 9 ELR 20478, to enjoin construction of a state prison in Omaha, Nebraska after finding that the requirements of the National Environmental Policy Act have not been violated. Part of the prison site was cleared pursuant to a federally funded redevelopment project, but the other portion is currently owned by plaintiff, and the state has commenced eminent domain proceedings. The district court required defendants to evaluate the sufficiency of the redevelopment project environmental impact statement (EIS) in light of the change in the project's purpose, i.e., to provide land for institutional rather than industrial use as originally planned, 8 ELR 20727. However, the court subsequently approved the reevaluation and dissolved a preliminary injunction against construction. The environmental reassessment, which concluded that no new or amended EIS was necessary, must be reviewed on the basis of the entire record and under the same reasonableness standard that governs negative threshold determinations. The court of appeals rejects plaintiff's contentions that the assessment was inadequate, specifically labeling as too speculative the claim that, without the adjacent land upon which to construct an oil spill prevention sump and dike, the plant will have to be closed, adversely affecting national supplies of lubricating oil. The court likewise holds that the environmental assessment adequately addressed the impact of noise from a nearby airfield on inmates, that defendants need not await the completion of additional noise studies, and that they gave sufficient consideration to the proposed extension and instrumentation of one of the airport runways. Finally, the court rules that treatment of the environmental impact of a contemplated work-release center was not required because the center's location and architectural design have not yet been formulated.

Counsel for Plaintiff-Appellant
Annette Mason
Ross & Mason
Suite 711, First Nat'l Bank Bldg., Omaha NE 68102
(402) 344-0570

Counsel for Defendants-Appellees
John Brown, Ass't Attorney General
2115 State Capitol, Lincoln NE 68509
(402) 471-2682

Patrick Kennison
Office of the City Attorney
1819 Farnam St., Omaha NE 68102
(402) 444-5115

Heaney, J. (joined by Gibson and McMillian, JJ.)