ML20207N582

Memorandum & Order Ruling on FEMA Claim of Deliberative Process Privilege.* Served on 870113

ML20207N582
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/09/1987
From:	Frye J, Paris O, Shon F Atomic Safety and Licensing Board Panel
To:	Federal Emergency Management Agency
References
CON-#187-2161 86-533-01-OL, 86-533-1-OL, OL-5, NUDOCS 8701140302
Download: ML20207N582 (4)

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UNITED STATES OF AMERICA h[

NUCLEAR REGULATORY COPMISSION ATOMIC SAFETY AND LICENSING BOARD '87 JM 12 P4 :13 Before Administrative Judges g, g DOC' : nr John H Frye, !!!, Chairman "4 Dr. Oscar H. Paris Mr. Frederick J. Shan SERVED JAN 131987 In the Matter of Docket No. 50-322-OL-5 (EP Exercise)

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, )

Unit 1) January 9, 1987 MEMORANDUM AND ORDER (Ruling on FEMA's Claim of Deliberative Process Privilege)

In our December 17, 1986, Memorandum and Order, we ruled in part on Intervenors' motion to compel FEMA to produce witnesses for deposition, to permit those witnesses to answer questions, and to prcduce certain documents. In that Memorandum and Order, we directed that witresses be made available for deposition and established a procedure for asserting the deliberative process privilege with respect to their testimony. We withheld a ruling on the documents furnished by FEMA for irl camera inspection pending completion of that inspection.

We have reviewed the documents furnished by FEMA. These docurrents fall into two categories:

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1. Drafts of the Post Exercise Assessment (PEA), related correspondence, and notes; and

2. Exercise Evaluation Critique Forms completed by the evaluators and certain documents labelled " Draft Timelines" which appear to be notations made by certain exercise evaluators during the course of the exercise.

Documents in the first category are privileged. They epitomize the deliberative process and are thus entitled to protection. While it may be true that these documents were prepared largely by consultants rather than members of the FEMA Regional Assistance Committee, that fact does not render the privilege inapplicable. Long Island Lighting Company (Shoreham Nuclear Power Station) ALAB-773,19 NRC 1333,1347 (1984).

Furthermore, the privilege has been properly asserted in the affidavits of Director Becton, and, with respect to this group of documents, has not been waived. However, as noted in ALAB-773, the candor of a consultants' informal advice may not be seriously affected by disclosure of their comments on the drafts of the PEA because they will be requirea to justify their views at the hearing. Thus, should this issue reemerge, FEMA must provide a detailed justification for its position that disclosure of draf ts of the PEA prepared by censultants would chill the RAC's deliberative processes.

Documents in the second category are not privileged. They are the record of the factual observations of the exercise evaluators and thus constitute the factual bases for the PEA. These factual observations are not inextricably intertwined with privileged material, nor would

i their disclosure reveal FEMA's decisionmaking process. See ALAB-773, 19 NRC at 1342.1 Consequently they must be released.

Additionally, a file labelled P-30 contains much correspondence dated after April 17, 1986, the date of the PEA. This correspondence is not privileged. It also contains an Exercise Evaluation Critique Form of C. Amato, and a letter of March 14, 1986, from Frank P. Petrone to Dr. Terry Surles, neither of which are privileged. Similarly, file P-54 is not privileged.

In consideration of the foregoing, it is this 9th day of January, 1987, ORDERED that FEMA's claim of privilege is upheld with respect to files P-1 through P-29, P-31 through P-34 P-45, and P-77 through P-97.2 FEMA's claim of privilege is overruled with respect to files P-30 (to the extent that it contains documents dated after April 17, 1986, C. s Amato's Exercise Evaluation Critique Form, and a letter of March 14, 1

We must also state that, even were these documents deemed to be privileged, we would direct their release. Because they constitute the factual bases for the PEA, they are essential to any meaningful review of that document. The factual infomation continued in these documents is not available elsewhere. Thus Intervenors' interest would outweigh FEMA's interest in confidentiality.

2 There is no P-94.

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4-1986, from F. Petrone to T. Surles), P-35 through P-44, and P-46 through P-76.

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Dr. Oscar H. 'aris ADMINISTRATIVE JUDGE hn Hgye III, Chaiman DM NISTRATIVE JUDGE Bethesda, Maryland r

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