pinon ridge hearing transcripts part 2

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287

JUDICIAL ARBITER GROUP

JAG NO. 12 A 1318

___________________________________________________

REPORTER'S TRANSCRIPT OF HEARING, VOLUME III

November 8, 2012

___________________________________________________

IN RE: THE APPLICATION OF ENERGY FUELS RESOURCES,

INC. FOR A RADIOACTIVE MATERIALS LICENSE FOR THE

PINON RIDGE URANIUM MILL

___________________________________________________

PURSUANT TO NOTICE to all parties in

interest, the above-entitled matter resumed for

hearing before THE HONORABLE RICHARD DANA on

Thursday, November 8, 2012, commencing at 8:44

a.m., at 1045 Main Street, Nucla, Colorado, before

Candice F. Flowers, Certified Shorthand Reporter

and Notary Public within and for the State of

Colorado.


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1 APPEARANCES:

2 ENERGY & CONSERVATION LAW

By Travis Stills, Esq.

3 1911 Main AvenueSuite 238

4 Durango, Colorado 81301

and5 JEFFREY C. PARSONS, ESQ.

Western Mining Action Project

6 P.O. Box 349

Lyons, Colorado 80540

7 Appearing on behalf of SheepMountain Alliance

8

FAEGRE BAKER DANIELS LLP

9 By James R. Spaanstra, Esq.Olivia D. Lucas, Esq.

10 3200 Wells Fargo Center

1700 Lincoln Street

11 Denver, Colorado 80203and

12 ENERGY FUELS RESOURCESBy Curtis H. Moore, Esq.

13 Director of Communications & Legal

Affairs14 44 Union Boulevard, Suite 600

Lakewood, Colorado 80228

15 Appearing on behalf of Energy FuelsResources Corporation

16OFFICE OF THE ATTORNEY GENERAL

17 By Jerry W. Goad, Esq.

1525 Sherman Street18 7th Floor

Denver, Colorado 80203

19 Appearing on behalf of ColoradoDepartment of Public Health and

20 Environment

21 MATT SANDLER, ESQ.Rocky Mountain Wild

22 1536 Wynkoop StreetSuite 303

23 Denver, Colorado 80202

Appearing on behalf of Rocky24 Mountain Wild, Center for Biological

Diversity, and Colorado

25 Environmental Coalition


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1 APPEARANCES (continued)

2 ROBERT LOUIS GROSSMAN, Ph.D.

6215 Baseline Road3 Boulder, Colorado 80303

Party in Interest

4

5

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10

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13

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1 INDEX

2

3 WITNESSES PAGE

4 LAWRENCE BRUSKIN

Examination by Mr. Stills 294

5

FRANK FILAS

6 Direct Examination Cont'd by Ms. Lucas 314

Voir Dire Examination by Mr. Stills 361

7 Cross-Examination by Mr. Sandler 375

Cross-Examination Cont'd by Mr. Sandler 417

8 Redirect Examination by Mr. Spaanstra 460

9 DR. CRAIG LITTLE

Direct Examination by Mr. Spaanstra 463

10 Cross-Examination by Dr. Grossman 478

Cross-Examination by Mr. Stills 493

11

NANCY CHICK

12 Cross-Examination by Dr. Grossman 502

Cross-Examination by Mr. Stills 508

13 Recross-Examination by Dr. Grossman 515

Cross-Examination by Ms. Lucas 516

14

15 PUBLIC COMMENTS 519

16

17 SMA EXHIBITS ADMITTED

18 Exhibit 10 297

19

20

21

22

23

24

25


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1 P R O C E E D I N G S

2 - - -

3 THE HEARING OFFICER: All right. I

4 was told there's been a miraculous breakthrough in

5 the scheduling and Olivia is the scrivener.

6 MS. LUCAS: This morning we

7 discussed that Sheep Mountain Alliance would begin

8 the morning asking a few questions of Mr. Bruskin

9 about discovery matters, I guess, on some

10 documents. We will continue with Frank Filas'

11 direct, which we expect to last about maybe an

12 hour.

13 At a morning break, we will -- Sheep

14 Mountain Alliance would like to cross-examine Mr.

15 Filas regarding the confidential documents and how

16 we can move forward with those. When we come back,

17 there will be, again, cross-examination of

18 Mr. Filas, probably by Rocky Mountain Wild, and

19 then Energy Fuels has Dr. Craig Little, who will be

20 here this morning, who we would like to present on

21 direct and then allow him, of course, for

22 cross-examination by interested parties.

23 And then as we discussed this morning, it

24 sounds like tomorrow will be Sheep Mountain

25 witnesses, most likely all day tomorrow, and that's


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1 as far as we got.

2 THE HEARING OFFICER: Okay. That's

3 the way everybody understood it, so...

4 MR. STILLS: There's still some

5 parts that we haven't put together, but instead of

6 trying to jam them in conditionally, we will take

7 them as they come.

8 THE HEARING OFFICER: Okay.

9 MR. GOAD: Before we get started,

10 Your Honor, I just want to note for the record that

11 if you recall, Mr. Tarlton was testifying yesterday

12 about some documents. We were able to track those

13 documents down. Those were sent to Mr. Stills via

14 e-mail yesterday at about 1:00. I was not able to

15 get those documents because they are fairly large,

16 so I asked Mr. Stills to distribute those to the

17 other parties as -- either by e-mail or disc or

18 something like that. So those have been provided.

19 MR. STILLS: That's correct. I

20 appreciate that. Thank you for turning those

21 around so quickly.

22 The server we were on last night was not

23 able to handle the size of the document. I will

24 try to send that around, but I did bring paper

25 copies of what I'm going to ask Mr. Bruskin about


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1 this morning, so we will have those to use. It's

2 only a portion of the document, but I will get the

3 whole document in through electronic means.

4 THE HEARING OFFICER: One

5 additional -- Mr. Egidi helped me figure out how to

6 convert the files that are in that link I have been

7 sending out to PDF files, although it's going to

8 take me a while mechanically, I think, to

9 accomplish it. And I now have probably 30 more

10 written public comments that I have not sent to

11 anybody as of -- they came in yesterday during the

12 day. So as soon as I can get some computer time

13 just sitting in a dark room, I will try to get all

14 this turned around and e-mailed to all of you, and

15 we will go from there. And, hopefully, if I can

16 get them all converted to PDF files, the link will

17 work and all of you can access it that way.

18 Anything else? You want to do -- it's a

19 discovery issue first?

20 MR. STILLS: Yes, a brief discovery

21 issue with Mr. Bruskin of CDPHE.

22 THE HEARING OFFICER: Have a chair,

23 Mr. Bruskin.

24 MR. BRUSKIN: Okay.

25 (Witness sworn.)


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1 THE HEARING OFFICER: State your

2 full name.

3 MR. BRUSKIN: Lawrence J. Bruskin.

4 THE HEARING OFFICER: B-R-U-S-K-I-N?

5 MR. BRUSKIN: Correct.

6 THE HEARING OFFICER: Your witness.

7 MR. STILLS: Thank you.

8 LAWRENCE BRUSKIN,

9 being first duly sworn in the above cause, was

10 examined and testified as follows:

11 EXAMINATION

12 BY MR. STILLS:

13 Q Good morning.

14 A Good morning.

15 Q A few questions mostly concerning some

16 document this is morning. I appreciate you coming

17 up here with not a lot of notice. We won't keep

18 you very long.

19 You're employed by the CDPHE; is that

20 correct?

21 A Correct.

22 MR. STILLS: And if I may, since

23 it's an adverse witness, I will proceed as if

24 cross.

25 Q (By Mr. Stills) And you are familiar with


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1 the application that's under consideration here

2 today, correct?

3 A Correct.

4 Q And you are familiar with the

5 environmental impact analysis under review here

6 today, correct?

7 A Correct.

8 Q And in the course of your work, you have

9 helped work on and produce both of those documents?

10 A Portions of those.

11 Q And as you were preparing those

12 documents, did you prepare drafts?

13 A Yeah, I think -- I don't think there was

14 a formal draft that we submitted. I basically put

15 my piece together and submitted it as a final.

16 Q Did you exchange e-mails with anyone

17 concerning that drafting?

18 A No. No e-mails that I can recall.

19 Q Do you prepare any written notes when you

20 prepare these kinds -- when you prepared these

21 documents?

22 A I can remember preparing some notes as I

23 was reviewing it, like I always do. I have notes.

24 I have some items that I write down, some on a

25 computer's yellow sticky notes, things like that,


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1 but just for my own personal use.

2 Q Do you assemble any technical documents

3 to help you with your preparation of these

4 documents?

5 A Yes, of course.

6 Q Do you maintain a file of those?

7 A Yes.

8 Q Thank you. I would like to have you take

9 a look now -- I'm sorry. One more question.

10 I would like to have you take a look at

11 that document I gave you. Have you ever seen these

12 documents before?

13 A You know, I have not.

14 Q Okay.

15 MR. STILLS: Is there any objection

16 to the authenticity of this document, Mr. Goad?

17 MR. GOAD: No objection.

18 THE HEARING OFFICER: These are the

19 invoices and the...

20 MR. STILLS: And it's a partial --

21 THE HEARING OFFICER: Docket sheets

22 as they were referred to yesterday.

23 MR. STILLS: It's a partial. I will

24 have the full version over in electronic.



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1 MR. STILLS: So if I can move that

2 in as, I believe -- I'm going to skip Exhibit 9.

3 Can I skip to 10?

4 THE HEARING OFFICER: Sure. I don't

5 care. So these are Sheep Mountain Alliance's

6 Exhibit 10.

7 (SMA Exhibit 10 was admitted.)

8 THE HEARING OFFICER: Unless

9 somebody particularly wants to use letters,

10 everybody use numbers and I will write your

11 abbreviation on here about whose exhibit is which.

12 Q (By Mr. Stills) In preparation for this

13 hearing, were you asked by Mr. Goad to assemble any

14 of the documents in your possession?

15 A No. He requested we review things, but

16 we do that normally.

17 MR. STILLS: I guess, based on that,

18 if I may, I would like to have -- and instead of

19 bringing a parade of CDPHE employees for the same

20 purpose, I would submit that none of the CDPHE

21 staff that helped prepare these documents were

22 asked to produce records despite this document of

23 the time sheet showing that Mr. Ethington,

24 Mr. Smith, and various other employees from the

25 CDPHE in the last two years have spent time working


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1 on this matter.

2 And what I would ask and move and hope

3 that we can get a stipulation on is that the CDPHE

4 counsel directs staff to go back and, perhaps with

5 Mr. Bruskin's assistance, do a document search and

6 disclosure for documents during this period. I

7 think this document that I have in hand is good

8 evidence that work's been done for the last two

9 years but not a single document has been produced

10 for 2012 or 2011 despite our requests for these

11 kinds of documents.

12 I assume that Mr. Goad might have

13 something to say. May we get the stipulation?

14 MR. GOAD: Your Honor, this is

15 highly unorthodox. Mr. Stills is essentially

16 conducting discovery in the midst of this hearing

17 and even though Your Honor has already ruled on

18 these discovery issues.

19 We will stipulate that the Department has

20 done work on this project over the last couple of

21 years; but, otherwise, our objections to this type

22 of discovery stand. Mr. Stills has not responded

23 to those, especially to relevance. And before we

24 impose such a huge burden upon employees of the

25 Department at this past the late hour, I think we


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1 need to rule on those issues, those objections, by

2 the Department.

3 MR. STILLS: Your Honor, if I may,

4 we would also stipulate that we would not demand or

5 even request that they be assembled by the end of

6 this hearing on Tuesday. I would expect --

7 although I wouldn't rule out the ability to use

8 them for cross-examination, I would anticipate that

9 we would merely use the documents as part of the

10 post-hearing submissions in support of any

11 arguments we may have there. I don't think there

12 would be any need to extend this hearing unless

13 something very much surprised me. If that's a way

14 this could work out, I would submit that as a

15 request.

16 THE HEARING OFFICER: Mr. Bruskin.

17 MR. BRUSKIN: Yes, sir.

18 THE HEARING OFFICER: I'm going to

19 ask questions, which is normally a stupid thing for

20 somebody in my position to do. But this file you

21 maintained, what is it? I mean...

22 MR. BRUSKIN: What it really is is

23 guidance and things of that nature; for example,

24 NRC guidance, EPA guidance, documents, professional

25 documents readily available in the literature,


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1 things of that nature, that help me evaluate this

2 application.

3 If I understand what he's really looking

4 for, which is what did I use to evaluate this

5 application with respect to actually writing down,

6 you know, draft notes or things like that, it was

7 just very -- like I said, yellow stickies and

8 things like that that I normally do during the

9 course of any design review document. And I

10 really -- I never really wrote any drafts, saying

11 here you go, review it, now I'm going to write a

12 final. It just all went out as a final document,

13 as you saw.

14 THE HEARING OFFICER: Do you

15 maintain in your files the sticky notes or the

16 back-of-envelope notes or...

17 MR. BRUSKIN: No. Once I complete

18 my write-up, those things are gone, that type of --

19 what it was it's just for me, as I go through the

20 document, just to say on this chapter, I found this

21 comment and this comment on the next one. And it

22 takes a while to get through a major document. The

23 way I do it is I wait until the end -- I go through

24 the whole thing, put my notes together, then come

25 back and write it up, so those just help me write


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1 up what I have just reviewed.

2 THE HEARING OFFICER: But you don't

3 keep them?

4 MR. BRUSKIN: I do not.

5 THE HEARING OFFICER: Okay. The

6 documents that -- the research you did, the

7 guidance, whatever --

8 MR. BRUSKIN: That I have.

9 THE HEARING OFFICER: -- how do you

10 maintain that?

11 MR. BRUSKIN: I have that in

12 different places. I have a notebook, for example,

13 full of professional papers from like the

14 geotechnical engineering journals, things like

15 that. I have other files specific to Energy Fuels.

16 For example, I have my NRC guidance, things I just

17 use for that project. So I guess I have them

18 literally in my office in a few different places,

19 but it's nothing that's not available in the public

20 domain. It's not things that I have drafted and

21 just kept to myself. That's not how I operate.

22 MR. GOAD: Your Honor, I would also

23 add that I believe all those documents are

24 referenced in the EIA, the reference section of the

25 EIA.


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1 MR. STILLS: Your Honor, if I may, I

2 have another question that might help clarify some

3 of this.

4 Q (By Mr. Stills) In the last two years,

5 were any documents submitted to the CDPHE by Energy

6 Fuels?

7 A The only document that I was asked to

8 review that was post-application was a construction

9 plan, and that came in as a draft. I provided some

10 comments and they finalized and then we wrote a

11 letter approving it. That's been my involvement

12 essentially since the application was deemed

13 complete -- or the license was issued.

14 Q And because we are moving pretty quickly,

15 perhaps Mr. Ethington would have been a better

16 person to speak to on this. Maybe we should bring

17 him up instead.

18 But based on this document, did other

19 people in the office work on material submitted by

20 Energy Fuels?

21 A I assume so. I'm not even sure what was

22 submitted. When Steve Tarlton, the manager for

23 this project, has something for me, he will give it

24 to me. But I'm not sure who gets what, you know,

25 that type of thing.


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1 MR. STILLS: I think I may have

2 brought the wrong person up to ask this. I saw Mr.

3 Bruskin on here and I knew he did some review.

4 Perhaps a couple minutes with Steve Tarlton or --

5 THE HEARING OFFICER: Let me pose a

6 question. I assume presumptively that each person

7 at CDPHE who was involved in this project may have

8 a file on Energy Fuels or files of documents in

9 their office. I mean may. Some may maintain it;

10 some may not.

11 MR. GOAD: Underscore the word

12 "may."

13 THE HEARING OFFICER: Let me

14 suggest -- I know we are in the middle of a hearing

15 and I note your objection to discovery. Schedule a

16 time after the hearing is concluded. Go to CDPHE.

17 Each of you make yourself available and say here is

18 what I got about this case. Share the files,

19 unless there are things you think are protected in

20 it. I mean, that's the quickest way to do it.

21 MR. STILLS: I'm good with that.

22 THE HEARING OFFICER: Obviously, Mr.

23 Goad, you may want to get into some attorney-client

24 stuff, but I don't know that you do. That's up to

25 you and I will deal with that if it happens.


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1 But I assume the individuals at CDPHE --

2 the quickest way to do this is sit in their office

3 and say, I have got this file. That's what I got.

4 I mean, rather than sit here and try to get

5 somebody else, some third party, to go look in Mr.

6 Bruskin's office and say, where is it. That just

7 seems overwhelming to me.

8 MR. BRUSKIN: Can I add one thing,

9 Your Honor?

10 THE HEARING OFFICER: Yeah.

11 MR. BRUSKIN: I have been at the

12 Department over 22 years, and basically since the

13 very beginning, we've had discussions -- because we

14 are a public agency and documents have to be

15 available to the public -- what we really should or

16 should not keep. And through those 22 years,

17 they've emphasized we do not keep draft documents.

18 That's just, you know, kind of the policy of our

19 division. When we complete a project, you know, we

20 go through it and what's relevant is filed and what

21 isn't often is discarded, and that's really how it

22 works in almost every project.

23 THE HEARING OFFICER: And I'm not

24 suggesting that I'm making a ruling that you should

25 have maintained that. I do a little drafting


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1 myself on occasion. Understand that there are all

2 kinds of little sticky notes and things on what I

3 do and that's the way it is, and they are not going

4 to be here a month from now.

5 MR. STILLS: Your Honor, we

6 recognize that there's some privilege that can go

7 along with the drafting and the notes. Those are

8 not the main focus. Our main focus is we've got a

9 broad pile of things. We weren't able to know

10 about them or have proof of them that there was

11 document review going on until yesterday when we

12 got this document, and it's a matter of timing as

13 much as anything else.

14 THE HEARING OFFICER: Well, give

15 some reasonable notice to CDPHE about when and

16 where, but do this in their office with Mr. Bruskin

17 sitting in his office because then he's going to be

18 able to say, here's this and here's that. If we

19 try to get some third party to go sort through

20 everybody's office, it will become absolutely

21 impossible so fast, we won't -- it won't work.

22 MR. STILLS: If I may, just to

23 establish the order of things here, we will need to

24 move fast on that, and then it will be in order to

25 use documentary evidence as such without having to


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1 call back any witness to authenticate. We can move

2 that into --

3 THE HEARING OFFICER: If we have

4 arguments, we'll have arguments.

5 MR. GOAD: Your Honor, conceptually

6 that's fine. One of our objections was that the

7 discovery requests were overly broad and

8 burdensome. In preparing the EIA, the Department

9 and Mr. Tarlton solicited the views of a lot of

10 State people, both in and outside of the

11 department. And I believe that there are some 20

12 people -- don't hold me to that exact number --

13 within the Department that responded to

14 Mr. Tarlton's request for input.

15 So maybe we can narrow that a little bit

16 to people within either Mr. Tarlton's group or the

17 hazardous materials and waste management division

18 like Mr. Bruskin, who were the primary contributors

19 to the development of the EIA.

20 MR. STILLS: We would be willing to

21 accept that narrowing for the documents of the EIA.

22 But one of the main things that I'm focused on is I

23 think we are looking at the documents from 2011 and

24 2012 that postdate the preparation of the EIA and

25 the finalization of the process below. They're


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1 documents that aren't in the administrative record

2 of this file by nature of just its timing, so we

3 are looking for things in the period of 2011 and

4 2012.

5 THE HEARING OFFICER: I'm not

6 suggesting that all 20 of these people have to be

7 talked to. I'm not suggesting that all 20 of these

8 people have to produce some kind of file.

9 Mr. Tarlton has a file. Drop it on the table. Let

10 counsel look at it. If you don't, you don't. I

11 mean, I'm not ordering a particular thing be

12 created.

13 But it seems to me the most efficient way

14 to find that out is to let -- the fastest way

15 through one of my files is to sit down and talk to

16 me about it: What's in here, where did it come

17 from. I would hesitate to subject anybody in my

18 office to try to read my notes. I think that would

19 be an absolute impossibility.

20 Just do it in the most efficient way, and

21 I assume you can find a time that accommodates

22 these folks and accommodates you. Sit down and

23 have a conversation about it. And if there's a

24 file, there's a file; and if there's not, there's

25 not. You know, I think you and Mr. Goad can have a


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1 conversation about how you can limit the numbers.

2 You don't want to talk to 20 people.

3 MS. LUCAS: Your Honor, I have a

4 question about -- this sounds like this is

5 happening outside -- they are not driving back to

6 Denver this weekend or anything.

7 THE HEARING OFFICER: No, I hope

8 not.

9 MS. LUCAS: So I'm curious about the

10 use of whatever is found. Is this just a file

11 review by an interested public party or is this

12 going to roll into --

13 THE HEARING OFFICER: I suppose if

14 somebody wants to make a tender that they've got to

15 reopen this hearing because of something found, I

16 will have to look at that. I suppose if somebody

17 wants to use one of the documents that's arguably

18 found in submitting for post-findings and

19 conclusions or writing a final brief, we will have

20 to look at that. We may have arguments about that.

21 I'm not ruling on any of that. We will deal with

22 that when it comes up. We may not have arguments.

23 MS. LUCAS: In the latter situation,

24 we would like to see what documents would be used

25 in the finding of facts and conclusions of law.


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1 THE HEARING OFFICER: Well, let me

2 suggest that if one of the documents is, in fact,

3 referenced in something you'd later write, make

4 sure everybody gets a copy of it.

5 MR. GOAD: Your Honor, since this is

6 a formal proceeding, I would assume what Ms. Lucas

7 is getting at is that they be allowed to review

8 those documents at the same time.

9 THE HEARING OFFICER: Well, you can

10 sit there while somebody is looking at it. If you

11 want to go through that brain damage, be my guest.

12 Mr. Sandler is invited also.

13 MR. SPAANSTRA: Your Honor, we would

14 also reserve relevance arguments that Mr. Stills

15 initiated this line of questioning about documents

16 that are in 2011 and 2012. CDPHE's decision is

17 going to be on the record which closed in January

18 of 2011, and so there is a fundamental question

19 about the relevance of any of that at this

20 proceeding.

21 THE HEARING OFFICER: Well, that

22 raises kind of an interesting question as to

23 whether the administrative record is closed before

24 we conclude this hearing, because I think the

25 argument can be made that this hearing is a part of


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1 the -- I'm sitting as a hearing officer for the

2 Health Department, folks, and that's the mandate I

3 have. And so, in theory, everything up through the

4 end of this hearing is a part of the record that

5 CDPHE will ultimately use. If I read McMullen's

6 order right, this hearing is a part of the record.

7 MR. SPAANSTRA: Your Honor, can I

8 respond? Absolutely this hearing is part of the

9 record, and what occurs from the date you convened

10 it through this process -- you know, obviously we

11 can argue this -- is part of the record. What we

12 are talking about is what happened between the

13 closing of the record and your reopening it.

14 That's the issue.

15 THE HEARING OFFICER: Point taken.

16 We can have that debate. I thought we were

17 probably talking about documents -- the iterative

18 documents that came in after the initial 2009

19 application and before -- I mean, Mr. Filas

20 testified about a series of responses that were

21 submitted to CDPHE. I assumed that's what we were

22 talking about. Am I wrong?

23 MR. STILLS: Yes.

24 MR. SPAANSTRA: Well, I think it's a

25 good question for Mr. Stills.


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1 good.

2 I mean, there's time expended here on

3 these time sheets, but there is time on my time

4 sheets getting ready for this hearing, revisiting

5 the issues that the lawyers raised. I mean, I

6 don't know what the time is. I would be sadly

7 disappointed if witnesses all weren't incurring

8 time before they get on the witness stand in here,

9 preparing a bit. I expect that. So we'll deal

10 with it when we deal with it.

11 But for now, cobble together some kind of

12 abbreviated rational discovery process that gets

13 folks a look at these files.

14 May I let this witness get off the

15 witness stand?

16 MR. STILLS: Thank you, Mr. Bruskin.

17 Your name came out of a hat because you're on the

18 website --

19 MR. SPAANSTRA: Don't play the

20 lottery this weekend.

21 THE HEARING OFFICER: This isn't so

22 painful. Now, do we get back to Mr. Filas? Not

23 that he wants to come back up here, but that's a

24 different question.

25 While you are taking your chair,


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1 what they say rather than hear it. On the phone

2 it's just a voice out of the ozone. I would

3 suggest -- yeah, they can do that, but it would be

4 more effective if they would write it down and send

5 it to me.

6 DR. GROSSMAN: It can also be

7 effective if they were calling in from Bangkok or

8 something like that.

9 THE HEARING OFFICER: Now, if you're

10 going to tell me that the effects of this can

11 extend to Bangkok, that's going to raise an

12 interesting argument, a whole nother conversation.

13 Your witness.

14 DIRECT EXAMINATION OF FRANK FILAS CONTINUED

15 BY MS. LUCAS:

16 Q Welcome back, Mr. Filas. Thank you for

17 being back.

18 Yesterday, as your slide indicates, we

19 left off going through Part 18, Appendix A, the

20 criteria, and the parts that are applicable to your

21 license. We got through Criterion 1, and I wanted

22 to start with Criterion 2. But before we go back

23 into the criteria, I wanted to ask a couple

24 questions to follow up on the environmental report.

25 You spoke about a wildlife mitigation


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1 know, we would work cooperatively with them in this

2 endeavor so if there's other improvements we can

3 make in that 415-acre area over time, we would

4 certainly consider it and work with them

5 cooperatively to do so.

6 Q And when you are referring to "them,"

7 that's the State Division of Parks and Wildlife,

8 right?

9 A Yes, it's combined now into Parks and

10 Wildlife.

11 Q And you mentioned 415 acres of mitigated

12 land, and then you said the footprint of the mill

13 is 415 acres as well, so is that how the 415 acres

14 of --

15 A Correct. And the idea was is through

16 active enhancement measures, that we would increase

17 the productivity of that area much more so than

18 what we actually have on-site, because our site has

19 been used for grazing cattle for years and, you

20 know, it would not be as good as an area that was

21 dedicated to wildlife.

22 Q And what's the anticipated final

23 footprint of the mill site once the life of the

24 mill is finished?

25 A It's about 160 acres would end up being


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1 excluded from winter range.

2 Q So there's a net gain at the end of the

3 life?

4 A Long term, yes.

5 Q And then you talked about this mitigation

6 plan. What species is considered in the wildlife

7 mitigation, this plan?

8 A Well, this plan was focused on the deer

9 and the elk for the severe winter range area that

10 was going to be dedicated to our mill.

11 Q Did the environmental report analyze any

12 threatened or endangered species and any kind of

13 mitigation necessary for those?

14 A Certainly. We asked that Edge do their

15 analysis much like they would do the analysis for

16 any of the federal land-managing agencies in an EA

17 or an EIS, so they looked at all threatened,

18 endangered, and sensitive species and candidate

19 species in the area. They identified none on our

20 site and none in the immediate vicinity of our

21 site.

22 They did identify three or four, I

23 believe, endangered fish in the Colorado River,

24 which is about 70 miles downstream of Bedrock, you

25 know, on the Dolores River, and that -- and as part


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1 of that, we ended up agreeing to pay into a fund to

2 protect those fish. We also subsequently, with our

3 agreement -- our water rights agreement on-site, we

4 subsequently agreed mainly with the Colorado Water

5 Conservation Board, but Sheep Mountain Alliance was

6 part of that agreement, so was the BLM, we agreed

7 to release water into the fish pool to augment the

8 water in the stream, especially during times of low

9 flow.

10 Q That was with your water rights. That's

11 not --

12 A Right. And in the ER, we basically

13 focused on that payment to the fund, but,

14 subsequently to that, additional mitigation

15 transpired as far as the water rights case.

16 Q Other than threatened and endangered fish

17 70 miles away, was there any other species in the

18 area that were threatened and endangered?

19 A There's a candidate species. It may even

20 be on the endangered list now. I don't really keep

21 up with that. It's not my area of specialty. But

22 there's Gunnison sage grouse. There's a lek about

23 11 miles south of us, and we don't have any mining

24 activity and our mill wouldn't impact that area, so

25 it was identified as being there, but it wasn't


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1 cover, that vegetation, through evapotranspiration,

2 would use the water that comes down to stabilize

3 the soil surface. So all those things combined, I

4 think, for a good final cover over the site.

5 Q And what precautions did Energy Fuels

6 take to ensure that the tailings impoundment is not

7 located near a capable fault?

8 A We drilled holes all over that site to

9 determine what the geology looked like. We had

10 three or four geophysical surveys across the site.

11 In fact, we did some additional work in areas where

12 we didn't have good resolution the first time.

13 Based on that, we did additional trenching and

14 dating of the various soils to verify if anything

15 had moved in the last few million years. We also

16 did some coring. There was a lot of work that our

17 geologists did. Anyplace that looked like there

18 could be a potential discontinuity, trenches or

19 coring was done to verify what was actually there.

20 Again, the geologists determined that

21 there were no capable faults. The faults that were

22 on-site had been created through very, very gradual

23 erosion over millions of years. They also

24 determined there were no discontinuities or

25 anything like that beneath our tailings facilities


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1 or mills that could cause problems.

2 They did find that the soils underneath

3 the mill, some of those were wind-blown soils, and

4 so they were not as compacted as they should be.

5 But we ultimately mitigated that based on the

6 engineers' recommendations to remove that soil and

7 recompact it prior to placing the mill foundations

8 down, and that's a common practice for those type

9 of soils.

10 Q And where is all of this information

11 describe in the application?

12 A The geologic report is found in Volume 4

13 of the application, and that also has the

14 geotechnical field and laboratory test program.

15 And then in our -- I believe it was our second

16 response to the first request for information, we

17 provided a detailed foundation design for the more

18 key mill buildings where processing was to occur.

19 Q You just testified that the areas were

20 essentially seismically stable. Were the tailings

21 impoundments designed, then, to deal with any

22 seismic activity at all?

23 A Of course. The International Building

24 Code was consulted, and the tailings facilities and

25 mill buildings and that were designed for the


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1 ponds, we have them under our ore pads; and there's

2 secondary containment on all of the mill processing

3 areas. So those are designed to prevent seepage

4 into an aquifer.

5 We are also required under NRC rules that

6 have basically the status that you will honor these

7 rules also, even though they may not be

8 incorporated into our regulations yet, but that if

9 we have any spill or release, we can't just walk

10 away from it. We have to report it. We have to

11 excavate it, move that material into a tailings

12 cell or other appropriate place, and then do

13 verification to make sure we've cleaned it up. So

14 we kind of clean up as we go these days so we don't

15 have a long-term contamination issue.

16 Q Is there any monitoring efforts along

17 with all of this?

18 A Yes. We have been monitoring the

19 Chinle-Moenkopi Aquifer that's on the south end of

20 the site. We have been monitoring it for five

21 years. And we have proposed additional monitoring

22 wells to the State as part of our application.

23 Q Moving on, can you discuss a little bit

24 how the application incorporates groundwater

25 protection programs?


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1 And then as far as if these constituents

2 are at low levels in the groundwater, the

3 protection standard will be established probably at

4 the State groundwater standard, but that's better

5 left for CDPHE to discuss. That's my understanding

6 of it.

7 Q Are there any groundwater impacts

8 occurring at the site right now due to seepage?

9 A No. The facility hasn't been built.

10 Q How does the tailings disposal system

11 proposed address the chemical and radioactive

12 characteristics of the waste solutions?

13 A Our proposed liners were tested in the

14 laboratory. Some already had test results in; some

15 we had the vendors do additional testing to make

16 sure that they were chemically compatible with the

17 tailings solution. As far as radiation goes,

18 again, that's an operating thing where we keep the

19 tailings saturated to keep the radon emissions

20 reduced in those areas.

21 Q You referred to testing. Is that in the

22 record, in the application, the results of that?

23 A Yes. The testing would be in the

24 tailings cell design.

25 Q And can you point to us where in the


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1 A Okay. That would -- again, Volume 4

2 looks at geology and Volume 5 looks at groundwater,

3 and there's a series of reports in both of those

4 volumes on various aspects of it.

5 Q How is the penetration of radionuclides

6 into these underlying soils minimized? I'm moving

7 on to Criterion 5H.

8 A Well, radionuclides -- of course, it's

9 your liner systems that are throughout the site.

10 Again, they are not just the tailings impoundments,

11 but the evaporation ponds, the ore pads. Under the

12 mill, again, you have secondary containment in all

13 critical areas. We have double-lined pipes, and

14 these pipes and the processing equipment, the

15 materials are so much better than they used to be.

16 You have HDPE pipes that are very

17 chemically resistant, much less likely to fail, and

18 you have got double-walled pipes. So if the inside

19 one fails, you still have the outside one. Our

20 tanks -- for example, our leach tanks used to be

21 wooden tanks and now they are rubber-lined steel

22 tanks or stainless steel tanks, so there has been a

23 big improvement in limiting the possibility for a

24 release.

25 Q And these pipes, what are they carrying


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1 and where are they carrying it to?

2 A Well, you have pipes within your mill

3 area that are carrying solution from one system or

4 building to another, and you also have pipes that

5 carry solution down to the tailings or the

6 evaporation ponds. Those pipes are larger and

7 they're typically in a line trench. The pipes,

8 though, at the mill are typically double-walled

9 pipe just going between the buildings.

10 Q Moving on to Criterion 6, this criterion

11 addresses precipitation events and storms at the

12 facility. Can you talk about how the tailings

13 cover would avoid contamination even under a

14 maximum probable precipitation event.

15 A Again -- and this is during closure, but

16 it is the same for operations too. Well, it's

17 slightly different for closure versus operations.

18 During operations, the water is diverted

19 around the facility. Within the facility, we have

20 two storm-water ponds: One on the east side of the

21 mill, one on the west. And if you had a huge

22 storm, any excess water from those storm-water

23 ponds or from the tailings cells would go to the

24 evaporation pond via gravity flow, and it has

25 capacity for the maximum probable precipitation


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1 event.

2 As far as during closure goes, again, the

3 water would be permanently diverted around this

4 closed tailings cell, and the tailings cell itself

5 is designed for the maximum precipitation event, in

6 that there is a ripwrap of the drainage areas, a

7 pretty substantial ripwrap of durable rock.

8 Q So it sounds like the facility is

9 designed so that water that occurs outside of it

10 will be diverted around and water that falls on top

11 of it will be contained.

12 A Right. And on top of that with the

13 vegetative cover. Obviously, for smaller storm

14 events, the precipitation would be consumed by the

15 vegetation that's there.

16 Q How will you know whether the radon

17 emissions over time are kept where they need to be?

18 Do you have a monitoring place for that?

19 A Well, during operations, you have air

20 monitoring systems. You have to model based on

21 what you find out. You have to model your various

22 facilities for radon. You also have groundwater

23 monitoring wells. As part of the periodic renewal

24 of the license, we do additional -- and also

25 annually, I might add, on some things -- you do


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1 additional sampling of vegetation and of soils. We

2 also sample the rabbit population, which is pretty

3 prolific out there. Every five years we would do

4 that to make sure that we aren't seeing increasing

5 radiation levels in even the biota.

6 Q How about after closure, is there a

7 continuing monitoring after that?

8 A After closure, we are required, as the

9 operator, to make sure that that site is stable.

10 And typically in the first few years, you might

11 have to do a little bit more seeding. You will

12 continue with your groundwater monitoring program,

13 perhaps air monitoring to some extent. Just

14 depends on what the State requires.

15 Once we can prove that the site is

16 stable, does not require any more vegetation, and

17 that the monitoring wells and that show no sign of

18 contamination, at that point in time we would

19 request a permanent release from that site. And as

20 part of that, we have posted a long-term care bond

21 or amount of money, and this money would either be

22 transferred to the State if they wanted to take

23 care of the site but, more likely, to the

24 Department of Energy. I believe all these sites

25 prior to us have gone to the Department of Energy.


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1 And that money would support periodic visits and

2 monitoring of the site in perpetuity.

3 Q Criterion 7, moving on, discusses

4 groundwater monitoring. Is there anything else you

5 would like to talk about in term of the groundwater

6 monitoring plan in place?

7 A Well, again, it has been in place for

8 five years, so there is a lot of data for the State

9 to work with.

10 Q And moving on to Criterion 8, can you

11 please discuss how the operations at the mill will

12 be conducted so that all airborne effluent releases

13 are reduced to levels as low as reasonably

14 achievable, what we talked about yesterday as

15 ALARA?

16 A Again, in our design of the facility, we

17 made sure that the equipment we had was the best

18 available for reducing emissions, and that included

19 a zero discharge yellowcake dryer, it included a

20 SAG mill rather than a crusher. Those type of

21 decisions were made early on to achieve ALARA. We

22 also -- at the recommendation of the CDPHE

23 personnel, we moved our administration building

24 away from the immediate mill area to reduce their

25 exposure. So design decisions played the initial


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1 role.

2 And then as far as moving forward, we

3 have procedures in place that are designed to

4 minimize exposure of our workers and of the general

5 public. And as far as then moving into closure, we

6 have got closure plans that are designed to -- with

7 radon covers and that -- to minimize or reduce the

8 radon levels to, again, as low as reasonably

9 achievable.

10 Q And how is dust from the tailings

11 impoundment controlled?

12 A There's several different ways of doing

13 that. The primary way is to keep the tailings

14 saturated, and this isn't that hard to do during

15 operations because you're discharging 500 tons per

16 day of slurry, and it's being discharged around the

17 entire facility. Some of the older facilities only

18 had a discharge in one place. But by putting it

19 all around the facility and by making this

20 impoundment a lot smaller than historic ponds,

21 we're able to keep that area pretty well -- the

22 beaches pretty well saturated at all times during

23 operations. There is also a water pool that

24 collects there and can cover anywhere from 20 to 80

25 percent of the tailings impoundment at any one


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1 decommissioning and other financial warranties.

2 I will just sort of open the floor to you

3 with the general question: If you could please

4 discuss the financial warranties that are

5 associated with the application.

6 A These were the warranties that were in

7 the license that has been set aside. And basically

8 the financial warranties -- the almost 1.4 million

9 was due after licensing before any construction

10 could occur on-site. Then there was 2.9 million,

11 approximately, was also then due prior to the start

12 of construction. So bottom line, the State was

13 covered because we have nothing on the site right

14 now that -- no 11e(2) byproduct material, but there

15 still was a bond in place at all times.

16 The bond was always increased prior to

17 the start of construction, and then, again, at the

18 50 percent point, it was increased by another 6.4

19 million, and finally prior to mill operations, the

20 last 400,000 would be posted, so the State and the

21 citizens of Colorado were protected throughout

22 this. And even if you think about it, at this

23 point in time, you have your full bond.

24 When that 400,000 is posted prior to

25 operations, you have your full bond in place, $11


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1 million, and there's still no process tailings

2 there. You might have some ore stockpile material

3 you might have to dispose of if you shut down right

4 at that point in time, but the State was well

5 protected.

6 There's also a second component to the

7 reclamation and closure funding, and that is the

8 long-term care fund. This is the amount of money

9 under the license that has been set aside. We

10 provided $844,000 to the State that went in cash to

11 them that would gain interest over time and

12 ultimately most likely be transferred to the

13 Department of Energy when the site was reclaimed

14 and met all the reclamation standards. So that was

15 how the State set it up for the license that was

16 issued in March of 2011.

17 Q Okay. Just to be clear, the district

18 court has set aside that license, so are any of

19 these financial warranties or long-term care fund

20 moneys in place or applicable right now?

21 A No. We had those refunded to us, and, of

22 course, if a new license is issued, we would expect

23 similar type of bonding requirements. However, one

24 other thing has happened in the meantime, and that

25 is: We did agree with the Town of Telluride and


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1 San Miguel County that we would increase our

2 bonding to a minimum of -- between the long-term

3 care fund and the financial warranties -- to $15

4 million. They felt that our bond was low and so we

5 agreed to this compromise.

6 I also want to point out, though, that

7 these financial warranties are reviewed annually.

8 So as a facility changes -- if, for example, we

9 have a release and the State is concerned about it,

10 that it's going to cost more money, or if we are

11 adding a second tailings cell or something like

12 that, then that bond could be adjusted upwards.

13 Likewise, if we close a cell and reduce the

14 reclamation cost requirements, then the bond would

15 go down. So this whole thing here provides a means

16 for making sure that that bond is adequate at all

17 times.

18 Q And who is the party that decides -- who

19 reviews the bond?

20 A It's the CDPHE radiation program, but I

21 believe the public has a right also to comment on

22 the adequacy of the bond during those reviews.

23 Q As we are talking about continued CDPHE

24 involvement in the site after a license is issued,

25 you mentioned earlier, I think, a five-year renewal


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1 used barium chloride to precipitate out uranium and

2 radium, and basically our precipitant looks almost

3 virtually identical to our ore. So it makes sense

4 to send it to the mill, recover the uranium, rather

5 than put it into a, say, disposal facility where

6 you wouldn't recover the uranium.

7 Q But you are not seeking to do that now?

8 A No.

9 Q Thank you. Thank you very much for your

10 time, Mr. Filas.

11 Final question: Under your

12 consideration, do you think this application is

13 complete and provides -- do you think this

14 application is complete?

15 A Certainly complete.

16 Q Do you think it provides enough

17 information --

18 MR. STILLS: Your Honor, if I may

19 object to these last two questions. They're

20 seeking a legal opinion from the witness.

21 THE HEARING OFFICER: Same ruling.

22 MS. LUCAS: Okay.

23 Q (By Ms. Lucas) In your experience seeking

24 permits from other agencies, given that experience,

25 do you think that there is anything outstanding


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1 that needs to be addressed with this application?

2 A I think this application was technically

3 superior to any that I have seen for any other

4 conventional mill ever. So, no, I'm pretty proud

5 of what we have put together here.

6 MS. LUCAS: Thank you.

7 THE HEARING OFFICER: As I

8 understand your conversation earlier, we now need

9 to have an in-camera discussion about

10 confidentiality issues?

11 MR. STILLS: Yes.

12 THE HEARING OFFICER: Before we

13 proceed with cross.

14 MR. STILLS: I think that would be

15 the way it would work out nicely, and as we

16 guessed, it's right up against a break time, so it

17 will facilitate getting the facility for our

18 discussion.

19 THE HEARING OFFICER: For those of

20 you who may not have been here yesterday, we don't

21 have chambers available in this proceeding.

22 Chambers is a place I get to go hide with the

23 lawyers and talk about things.

24 So we are going to take a ten-minute

25 break, and I'm going to just get the parties and


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1 probably multiple hundreds designated as

2 confidential. Then we -- I need to refresh my

3 memory a little bit. We had our conversation with

4 SMA. They asked us to go back through -- well, I

5 don't know if they asked us. We went back through

6 and did a second -- another production of documents

7 that we determined, in fact, were not confidential.

8 And we provided to SMA a CD of documents that had

9 removed the confidential stamp, and then all the

10 others remain confidential. That was how that was

11 handled, and I need to look back through and

12 remember how many --

13 THE HEARING OFFICER: Do you have an

14 estimate as to how many remain designated as

15 confidential?

16 MS. LUCAS: I can get that to you.

17 We are going to call our --

18 THE HEARING OFFICER: A ballpark. I

19 don't need to know --

20 MS. LUCAS: I understand. I don't

21 know off the top of my head, but my colleague does.

22 And I'm also looking through papers which I believe

23 in our filings we made a statement --

24 THE HEARING OFFICER: Yeah, there

25 are some numbers in one of those discovery filings.


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1 MR. STILLS: If my memory serves,

2 that number only addressed the privileged, not the

3 confidential --

4 MS. LUCAS: No, I don't -- well, I

5 need to check.

6 THE HEARING OFFICER: This chart

7 addresses the privilege.

8 MR. STILLS: Your Honor, what I'm

9 referring to is this hard drive that I submitted.

10 THE HEARING OFFICER: Yeah, but

11 that's the first cut.

12 MR. STILLS: And I appreciate that

13 you have someone in your office who might know, and

14 I think it would be appropriate to --

15 MS. LUCAS: Can you say that again?

16 MR. STILLS: If you made those cuts

17 in the process of doing it, it should be a clerical

18 exercise. For me, it's a substantive analysis one

19 by one of hundreds of documents.

20 MS. LUCAS: So what you are asking

21 for is a list of hundreds of documents with the

22 title, who wrote it, and the date and all of that

23 stuff so you can look over it and say, Oh, this

24 seems like it might be confidential and this one

25 doesn't?


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1 MR. STILLS: Here's the practical

2 side of what I'm looking at, the larger piece. I

3 got the remainder -- I got the documents that were

4 released that have no confidentiality stamps at

5 all, including your secondary response and the

6 documents you released without stamps on them. And

7 I have these ready to offer into evidence, and if

8 we can stipulate them in, as we've been doing with

9 the other things, we can be good with that.

10 The problem is with, as you said, the

11 gargantuan effort to have me go through and analyze

12 what's in this, I'm suggesting you've got a list.

13 That's a very different exercise, and perhaps you

14 could have someone delete or move into a separate

15 file that which is confidential so we can use it

16 without it being cumbersome as we move forward.

17 MS. LUCAS: I understand what you

18 are saying, and so my question is: Do you know

19 which documents you want to use going forward?

20 MR. STILLS: Yes, and they are

21 voluminous.

22 MS. LUCAS: And some are

23 confidential and some are not?

24 MR. STILLS: Yes.

25 MS. LUCAS: And do you know which


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1 ones you want to project in front of the public

2 that are confidential?

3 MR. STILLS: Yes. I've got a short

4 number of those.

5 MS. LUCAS: And so the others you

6 want to proffer into evidence?

7 MR. STILLS: Yes.

8 MS. LUCAS: I think that -- you

9 know, the point of confidentiality is that they

10 will go into evidence and be kept confidential on

11 the record in the future. And I think that that is

12 acceptable, that we don't have any problem with

13 those being offered into evidence with the

14 confidentiality stamp on them. And the ones that

15 you want to use here that are marked confidential

16 we will deal with as we go along.

17 MR. STILLS: As we're about to deal

18 with one document.

19 MS. LUCAS: Yeah. Unless you have

20 concerns about ones that are marked confidential

21 that you are planning to just enter into the

22 record, that's...

23 MR. STILLS: Here is my concern, and

24 that is trying to make -- this is in evidence. I

25 don't know that everybody here has a copy of it,


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1 which I would need to get out. I guess -- and I

2 don't know if everyone wants to have a protective

3 order with some of the back and forth that's

4 happened here hanging over their heads with

5 confidential documents in their possession. Not

6 everyone knows how to handle confidential

7 documents.

8 I'm just trying to look for a way -- like

9 Dr. Grossman. I was looking for a way to get the

10 full set to Dr. Grossman without them in and me be

11 able to use it, knowing when I was going to have to

12 go through the procedure of a confidential

13 document, which I don't have a problem with

14 personally. I'm looking for that practical piece,

15 but if we can move it all into evidence and maybe

16 sort out how to do this later, we would be in good

17 shape.

18 MS. LUCAS: I need to confer with

19 the client.

20 THE HEARING OFFICER: Let me ask a

21 question of Mr. Stills. How many documents do you

22 have that you are aware of that retain a

23 confidentiality designation that you want to use in

24 examination of a live witness?

25 MR. STILLS: Five.


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1 sense.

2 MR. STILLS: I'm entering in a

3 record copy. It's got EFRFP1, Energy Fuels Request

4 for Production 1, and that should be the full sum

5 of it: The hard drive that was provided to us plus

6 the CD ROM that I just handed Judge Dana. So we're

7 good on that.

8 THE HEARING OFFICER: These are

9 nonconfidential documents?

10 MR. STILLS: That's correct.

11 THE HEARING OFFICER: The hard drive

12 still has confidential documents.

13 MR. STILLS: That's correct.

14 MR. SPAANSTRA: For the record, Your

15 Honor, I have Caroline Lee on speaker here. I

16 think we have resolved this.

17 THE HEARING OFFICER: I think so.

18 MR. SPAANSTRA: Caroline really

19 knows the ins and outs of this, but if we are down

20 to five documents, that will make it pretty easy.

21 We are fine as long as they are marked as you just

22 indicated, Your Honor, and CDPHE, we are confident,

23 has procedures in place to keep them confidential.

24 THE HEARING OFFICER: Do you want to

25 make a proffer on the record about which five or do


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1 you just want to talk privately?

2 MR. STILLS: No, I don't think it's

3 a good use of the time right now to do that, and I

4 think there are still privileged documents coming

5 to me. I'm making decisions about which of those

6 to go through. I haven't seen them yet.

7 MS. LUCAS: We were going --

8 MR. STILLS: I'm not saying --

9 THE HEARING OFFICER: Let me tell

10 you, I'm close. By 1:00, after the lunch break, I

11 will have been all the way through this privilege

12 log. I have, then, a question and you might

13 caution Caroline that this is coming.

14 MR. SPAANSTRA: Caroline, can you

15 hear Judge Dana?

16 MS. LEE: I can. Thank you.

17 THE HEARING OFFICER: I'm going

18 to -- I need the underlying e-mails for about a

19 third of these documents.

20 MS. LUCAS: Caroline is on top of

21 it. We have them.

22 MR. SPAANSTRA: From listening

23 yesterday, she was already on it.

24 THE HEARING OFFICER: Okay. So when

25 you can get me that, then I will combine that with


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1 the ones I have questions about, and it won't take

2 long to make this -- you know, this has been a

3 quicker review than I thought it would be.

4 MS. LUCAS: I have them on my

5 computer and I can --

6 THE HEARING OFFICER: Can you add

7 them to the disc I already have?

8 MR. STILLS: I have a disc if you

9 need one.

10 MS. LEE: I can e-mail them to you

11 as well, Judge Dana.

12 THE HEARING OFFICER: Why don't you

13 try and e-mail to me --

14 MS. LEE: Sure. I will do that.

15 THE HEARING OFFICER: -- the

16 underlying e-mails that go with the documents on

17 the privilege list.

18 Just for the record, so everybody will

19 know what we're arguing about, what I think I have

20 is I have the attachments --

21 MS. LEE: Right.

22 THE HEARING OFFICER: -- that were

23 sent -- there was an e-mail sent from Mr. Filas,

24 for example, to you, Mr. Spaanstra, but I didn't

25 get the e-mail. All I got was the attachment that


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1 went with it. So I'm looking at it trying to

2 think, How is this lawyer-related, how is this

3 attorney-client? Because I didn't have the cover

4 e-mail that it came with. So that's where I got

5 bogged down and that's the discussion we started up

6 here at the bench yesterday.

7 So now if I can get those and put them

8 together, but it won't take long once -- if you

9 will go ahead and e-mail those to me, then

10 hopefully by 1:00, I'll just say, You get these

11 documents. And, again, it's going to be a limited

12 number. I will caution you.

13 MR. STILLS: Well, the confidential

14 I have, that's a discussion revealing on how I deal

15 with them, those documents I've gotten, so that's a

16 procedural matter. Once I get all the privileged,

17 then I will have, I believe, everything that I...

18 THE HEARING OFFICER: That you are

19 going to get.

20 MR. STILLS: And then I can close

21 that off and know it's closed off and do what I

22 need to do on that, so I appreciate that.


24 MR. SPAANSTRA: Ms. Lee, for the

25 record, could you spell your name. Actually, it's


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1 A No.

2 MR. STILLS: I would like to enter

3 this page into the record, then, Your Honor, as a

4 nonconfidential document.

5 MR. SPAANSTRA: Frank, do you have

6 the page in front of you?

7 MR. FILAS: Yes.

8 MR. SPAANSTRA: Your Honor, give us

9 one minute. We would like to confer.


11 (The witness and counsel confer.)

12 MR. STILLS: The witness is

13 conferring with counsel, for the record.

14 THE HEARING OFFICER: Apparently.

15 MS. LUCAS: We were just curious.

16 This particular page probably doesn't have any

17 business confidential information on it, but are

18 you going to present every page of the report?

19 MR. STILLS: I sure hope not.

20 MS. LUCAS: Where is this headed?

21 MR. STILLS: I'm getting a little

22 bit of voir dire on how the document was handled to

23 see if it's got any privilege still attached to it

24 at all.

25 MS. LUCAS: First of all, just for


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1 your position. I have a couple of questions that

2 go towards those issues.

3 THE HEARING OFFICER: Ask your

4 questions.

5 Q (By Mr. Stills) And I will refer to this

6 as the basic engineering report to refer to the

7 whole report --

8 A Sure.

9 Q -- that this is part of.

10 Who was provided a copy of the entire

11 basic engineering report?

12 A Energy Fuels. We have eight sets.

13 Q You have eight sets.

14 Was anyone else provided a copy of that

15 document?

16 A No. However, we did make a decision when

17 we put together our license application that -- I

18 take it back. We gave a copy to LynTec, who is

19 another processing company that we work with. I

20 don't know -- I think that set was returned to us,

21 though. I'm not sure. I was not involved in that.

22 Q Did you provide a copy to anyone else?

23 A Not that I'm aware of.

24 Q Were confidentiality agreements prepared

25 before those were shared with LynTec?


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1 general arrangement plans for the mill and the

2 process flow diagrams. We didn't necessarily want

3 to provide all of that, but we thought that that

4 was information that CDPHE needed in order to do

5 their evaluation. So we got approval from CH2M

6 HILL to use those drawings in that capacity. We

7 had each of those plans reviewed and stamped by a

8 PE as requested by CDPHE and we provided that in

9 Volume 1 of our license application.

10 Q Do you have to get CH2M HILL's permission

11 to use other parts of this document?

12 A I would. I'm not an attorney, so I don't

13 feel real comfortable reading this and determining

14 one way or another whether I could act without

15 their approval. So normally what I would do would

16 be -- you know, be very direct with them and say,

17 we would like to release this, if we decide we want

18 to release it or the Court decides that we have to,

19 I would certainly talk to them.

20 Q Do you have the authority to release this

21 on behalf of Energy Fuels?

22 A No.

23 Q Who would?

24 A Probably Curtis.

25 Q As --


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1 A I'm not legal counsel. I'm the

2 environmental manager.

3 MR. STILLS: I think we have done

4 enough of this now. I think we have now fed into

5 the discussion we need to have, but I think I've

6 got what I need to know. I think we probably need

7 to hammer this out amongst counsel and see if we

8 can get a stipulation on it. Otherwise, I will

9 take it from here when I start cross. Thank you.

10 THE HEARING OFFICER: So you want to

11 mark this as 11?

12 MR. STILLS: Yes.

13 MS. LUCAS: Your Honor, I just want

14 to -- can I ask a question of Mr. Stills?

15 THE HEARING OFFICER: Sure.

16 MS. LUCAS: And this might be part

17 of the conversation we'll have later, but I just

18 want to know what we are conversing about later.

19 What do you want? Do you want us to call this not

20 a confidential document so that you can project it

21 on the screen and have people ask CDPHE for copies

22 of it?

23 MR. STILLS: Yes. Or not ask CDPHE

24 for copies of it. Ask me for copies of it. Let

25 Dr. Grossman use it outside of his capacity as a


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1 party. Let Sheep Mountain Alliance's members, as

2 opposed to its litigation team, be able to review

3 it. Have folks such as Sarah Fields, who has as

4 much information on these as anybody, to post it on

5 SMA's website so the public can understand, because

6 this document was used as the basis -- for this

7 proceeding, which we take the view -- Sheep

8 Mountain Alliance takes the view as a public

9 interest organization that it's not just for the

10 litigation team of the entity, but it is important

11 for the broader public and their members -- we

12 can't give these to their members without having a

13 protective order that is completely unwieldy -- to

14 understand and see the basis of the report upon

15 which the application was built.

16 MS. LUCAS: Dr. Grossman, of course,

17 is a party and so he has access to this if he needs

18 it. We will talk

pinon ridge hearing transcripts part 2

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