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Chemcentral/Grand Rapids Corp. v. EPA

Citation: 23 ELR 20797
No. No. 91 C 4380, (N.D. Ill., 10/06/1992)

The court grants the U.S. Environmental Protection Agency's (EPA's) motion for summary judgment that agency documents regarding adoption of state regulations as applicable or relevant and appropriate requirements (ARARs) at specific Superfund sites are exempt from Freedom of Information Act (FOIA) disclosure under the deliberative-process privilege. Plaintiff, a potentially responsible party at a Wyoming, Michigan, site that is listed on the Comprehensive Environmental Response, Compensation, and Liability Act's national priorities list, sued EPA under FOIA for release of records regarding adoption of Michigan's regulations as ARARs at Michigan Superfund sites. FOIA exempts inter- or intraagency documents from disclosure that would not be available by law to a party other than an agency in litigation with the agency. The court holds that this exemption applies to materials safeguarded under the attorney-client privilege, attorney work product doctrine, and the agency deliberative-process privilege. The deliberative-process privilege protects "predecisional" and "deliberative" documents reflecting advisory opinions, recommendations, and deliberations. The court holds that documents discussing adoption of ARARs at specific sites are predecisional because selection of ARARs depends on site-specific variables. The deliberative-process privilege protects communications between federal agencies and outside consultants whose opinions are part of the agency's own deliberative process. The court also rules that the work product doctrine and attorney-client privilege protect certain documents from disclosure.

Counsel for Plaintiff
Louis Rundio
McDermott, Will & Emery
227 W. Monroe St., Chicago IL 60606
(312) 372-2000

Counsel for Defendants
Jonathan Hale, Ass't U.S. Attorney
U.S. Attorney's Office
219 S. Dearborn St., Rm. 122-N, Chicago IL 60604
(312) 353-5300