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September 22, 1982


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 modifications.

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.

The Nixon affidavit, referred to above, is a fairly detailed document that describes both the process of preparation of the Draft EIS and, in rather cursory fashion, the content of each of the eight sections and five appendices of the third preliminary version of the Draft EIS. The Nixon affidavit is the only submission in this case that provides any hint of the contents of the disputed document. The portion of the Nixon affidavit that describes the document is reproduced here in its entirety:

  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
  radiation environment.
  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 ...

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