The opinion of the court was delivered by: Hubert L. Will, District Judge.
This is an action under the Freedom of Information Act
(FOIA) brought by plaintiff City of West Chicago (West
Chicago) pursuant to 5 U.S.C. § 552(a)(4)(B) (1977), seeking
disclosure of an Environmental Impact Statement (EIS) covering
the proposed "decommissioning" of a Kerr-McGee manufacturing
facility in West Chicago and of documents pertaining to that
EIS in the possession of the defendant Nuclear Regulatory
Commission (NRC). The matter is now before the Court on
defendants' motion for summary judgment. For the reasons which
follow, the defendants' motion is granted in part and denied in
part and the defendants are ordered to submit to this Court for
in camera inspection the sections numbered 1, 4 and 7 of the
third preliminary version of the Draft EIS covering the
proposed decommissioning. The defendants are also ordered to
submit an authenticated copy of the final version of the Draft
EIS to assist the Court's in camera inspection.
The controversy involved here began with a request dated
November 12, 1981 on behalf of West Chicago for disclosure of
all documents and other materials available from the NRC
relating to the EIS covering the decommissioning of the
Kerr-McGee manufacturing facility in West Chicago. For a
number of years, the Kerr-McGee facility had been used for
milling and manufacturing operations involving thorium, a
radioactive element. As a result of years of such operations,
equipment, buildings and residual materials at the facility
are contaminated with thorium, a radioactive element. They
must now be "decommissioned," that is, dismantled and disposed
of, a process over which the NRC has regulatory authority.
Pursuant to this authority, the NRC, in November 1978,
ordered Kerr-McGee to produce a full decommissioning plan for
the facility. That plan was commented upon by the State of
Illinois, the Environmental Protection Agency and West
Chicago. As a result, the NRC requested a revised plan, which
was submitted in August 1979. The NRC then apparently
concluded that the proposed decommissioning was a "major
federal [action] significantly affecting the quality of the
human environment" and decided to arrange for work to begin on
the preparation of the EIS that the National Environmental
Policy Act (NEPA) requires in such cases. See
42 U.S.C. § 4332(2)(C) (1977). The NRC's announcement of intent to prepare
an EIS in connection with the project was published in the
Federal Register late in 1979. 44 Fed.Reg. 72,246 (1979).
According to the affidavit, dated May 7, 1982, of William A.
Nixon, a Senior Chemical Engineer employed by the NRC and the
Project Manager for the Kerr-McGee Decommissioning Project
(Nixon Affidavit or the affidavit), the NRC submitted a
proposal to the Department of Energy (DOE) requesting a DOE
contractor, the Argonne National Laboratory (Argonne), to
provide technical assistance to the NRC staff in the
development of an environmental analysis of the project.
Argonne submitted its work product directly to the NRC for
assessment and review.
The EIS, which the NEPA requires to be prepared for all
"major federal actions" that "significantly [affect] the
quality of the human environment" is a document prepared for
public scrutiny. Rather detailed regulations of the Council on
Environmental Quality (CEQ) outline the procedure for
development of a Draft EIS in appropriate cases, submission of
the Draft EIS to the public and to other federal and state
agencies and entities for comment, and, last, for preparation
of a Final EIS incorporating or rejecting the comments
received. See 40 C.F.R. §§ 1502.9, 1503 (1981). The documents
that Argonne was involved in preparing and which are in issue
in this lawsuit have been described as "preliminary versions"
or "drafts" of the Draft EIS (Nixon Affidavit, ¶ 4). This
characterization is uncontroverted.
According to the Nixon affidavit, these preliminary versions
of the Draft EIS were submitted by Argonne to the NRC for
review and criticism between December 1980 and December 1981.
There were three such preliminary versions in all;*fn1 each
one was unsatisfactory to the NRC and each was returned to
Argonne together with criticisms and recommended
The plaintiff's FOIA request was filed on November 12, 1981,
prior to the release of the Draft EIS, which was then still in
preparation. The request sought copies of all documents and
other materials relating to the EIS. No completed Final EIS or
Draft EIS was in existence at the time of this request, and an
employee of the NRC orally informed the plaintiff that no
documents would be released pursuant to this request.
Plaintiff then filed a written appeal from this initial
denial. The appeal was in turn denied in a letter directed to
plaintiff's attorney, dated December 21, 1981. The letter
emphasized that numerous records relating to the Kerr-McGee
project had already been released to West Chicago in
connection with related FOIA requests of that city. It noted
that the NRC would comply with the disclosure and comment
requirements of NEPA and that West Chicago would have the
opportunity to comment on Argonne's final product in the form
of a Draft EIS. The denial letter claimed that the materials
requested were exempt from the disclosure requirements of the
FOIA by virtue of an Exemption in that statute.
9. Th[e] third draft of the Draft EIS consists of
329 pages. It is divided into eight sections and
contains five appendices.
10. Section 1 of the third draft contains a
ten-page summary description of the Kerr-McGee
site in West Chicago and a brief discussion of
the six proposed decommissioning alternatives
that were under consideration. Section 1 also
includes a brief analysis of the environmental
impacts involved in each alternative as well as
any restraints that exist for the implementation
of any of the proposed alternatives. Finally,
this section contains a short explanation of the
NRC staff's preferred choice (in December 1981)
among the six alternatives and a description of
the licensing and other regulatory activities
necessary to carry out that alternative.
11. Section 2 of the third draft contains a
two-page summary history of the Rare Earth
Facility and of the development of the
decommissioning plan, which is derived from
information already in the public record.
12. Section 3 of the third draft is twenty-seven
pages long and contains a more detailed analysis
of the six proposed decommissioning alternatives
being considered and the costs and problems
associated with each of the proposals.
13. Section 4 of the third draft is a 161-page
detailed description of the West Chicago site and
the proposed alternative disposal sites. The
descriptions include discussions of the pertinent
details of each disposal site's topography,
climate, demography and social profile,
historical and archaeological resources, water
resources, flora and fauna, and the existing
14. Section 5 of the third draft is a
seventy-nine page description of the
environmental impacts at each of the proposed
alternative sites in terms of air quality,
topography, socio-economic and political
concerns, land resources, historical and
archaeological resources, water resources, flora
and fauna, and radiation health. It also
discusses proposed methods of mitigating
undesirable impacts, where applicable, and sets
forth any irreversible and irretrievable
commitments of resources for each of the
15. Section 6 of the third draft is an eight-page
delineation of the environmental effects of
potential accidents, both radiological and
nonradiological, that could be considered unique
to any of the decommissioning alternatives. Also
discussed are safety measures to prevent such
potential accidents or minimize their impacts.
16. Section 7 of the third draft is an eight-page
description of the monitoring programs that are
now in existence, or may need to be instituted,
with regard to each of the proposed alternatives.
17. Section 8 of the third draft is a one-page
list of those who contributed to its preparation.
18. Attached to the third draft are five
appendices, totalling thirty-three pages in
length, that compile data relating to various
aspects of the proposed decommissioning
alternatives, including the methodology of site
selection and surveys of the physical ...