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West Chicago, City of v. NRC

ELR Citation: 13 ELR 20605
Nos. No. 82 C 842, 547 F. Supp. 740/18 ERC 1733/(N.D. Ill., 09/22/1982)

The court rules that the portions of the preliminary version of the Nuclear Regulatory Commission's (NRC's) draft environmental impact statement (EIS) for the decommissioning of a radioactive thorium manufacturing plant that reflect the government's policymaking process are exempt from disclosure under Exemption 5 of the Freedom of Information Act (FOIA) concerning interagency memoranda. Although no draft EIS was yet completed, plaintiff requested under the FOIA copies of all interagency documents relating to the EIS. The court rejects plaintiff'a argument that one section of the Council on Environmental Quality's National Environmental Policy Act (NEPA) regulations overrides the general protection from disclosure provided by Exemption 5. The regulation, §1506.6(f), requires comments on the proposed action to be released without regard for the FOIA exemption for interagency memoranda. Plaintiff's reading would in effect repeal the exemption for EIS preparation, but only if the EIS was prepared on contract by another agency. Moreover, the history of §1506.6(f) indicates that the regulation applies only to comments of federal agencies reviewing draft EISs already made available to the public, not to comments on preliminary drafts.

The court also holds that Exemption 5 of FOIA exempts from disclosure materials reflecting the policy-making process, and rules that the preliminary draft is the sort to be protected, at least to the extent it does not contain segregable purely factual material. The court holds that NEPA's requirement that the draft EIS be made public does not weaken protections for preliminary drafts. The court concludes that four sections of the preliminary draft, which include an historical summary, a cost-benefit analysis, and analyses of the environmental impacts of disposal and accidents, are clearly policymaking materials and are exempt from disclosure. The list of contributors is also exempt. However, three sections of the preliminary draft contain factual material and may be subject to disclosure. To make this determination, the court orders the NRC to produce those sections of the preliminary draft for in camera inspection and to produce a copy of the final draft EIS for comparison.

Counsel for Plaintiff
Harold J. Spelman
Harold J. Spelman & Associates
P.O. Box 190, West Chicago IL 60185
(312) 231-1580

Counsel for Defendants
Gail C. Ginsberg, Ass't U.S. Attorney
Rm. 1500, U.S. Cthse., 219 S. Dearborn St., Chicago IL 60604
(312) 353-5437