pinon ridge hearing transcripts part 4

7/30/2019 Pinon Ridge Hearing Transcripts Part 4

1/265

AGREN BLANDO COURT REPORTING & VIDEO INC

Denver (303) 296-0017 Boulder (303) 443-0433 Colorado Springs (719) 635-8328 Greeley (970) 356-3306Court Reporting Videography Digital Reporting Transcription Scanning Copying

816

JUDICIAL ARBITER GROUP

JAG No. 12 A 1318

________________________________________________________

REPORTER'S TRANSCRIPT OF HEARING, VOLUME VNovember 10, 2012________________________________________________________

IN RE: THE APPLICATION OF ENERGY FUELS RESOURCES, INC.,FOR A RADIOACTIVE MATERIALS LICENSE FOR THE PINON RIDGEURANIUM MILL

________________________________________________________

PURSUANT TO NOTICE to all parties in

interest, the above entitled matter resumed for hearing

before Honorable Richard W. Dana on Saturday, November 10,

2012, beginning at 8:35 a.m., at 1045 Main Street, Nucla,

Colorado, before Elizabeth W. Schnittker, Registered

Professional Reporter and Notary Public within and for the

State of Colorado.


2/265



817

1 APPEARANCES:

2 FAEGRE BAKER DANIELS, LLP

By James R. Spaanstra, Esq.3 Olivia D. Lucas, Esq.

1700 Lincoln Street, Suite 3200

4 Denver, Colorado 80203with

5 ENERGY FUELS RESOURCESBy Curtis H. Moore, Esq.

6 Director of Communications &Legal Affairs

7 44 Union Boulevard, Suite 600Lakewood, Colorado 80228

8 Appearing on behalf of Energy FuelsResources

9 TRAVIS STILLS, ESQ.10 Energy Minerals Law Center

1911 Main Avenue, Suite 238

11 Durango, Colorado 81301and

12 JEFFREY C. PARSONS, ESQ.Western Mining Action Project

13 P.O. Box 349Lyons, Colorado 80540

14 Appearing on behalf of Sheep MountainAlliance

15MATT SANDLER, ESQ.

16 Rocky Mountain Wild1536 Wynkoop Street, Suite 303

17 Denver, Colorado 80202Appearing telephonically on behalf of

18 Biological Diversity and ColoradoEnvironmental Coalition

19OFFICE OF THE ATTORNEY GENERAL

20 By Jerry W. Goad, Esq.First Assistant Attorney General

21 1525 Sherman Street, Seventh FloorDenver, Colorado 80203

22 Appearing on behalf of ColoradoDepartment of Public Health

23 and Environment

24

25


3/265



818

1 APPEARANCES: (continued)

2 ROBERT LOUIS GROSSMAN, PhD

6215 Baseline Road3 Boulder, Colorado 80303

Appearing as a Party in Interest

4

5

6 ALSO PRESENT:

7 Mr. Frank Filas

Mr. Philip Egidi

8 Ms. Jennifer Opila

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


4/265



819

1 I N D E X

2

3 PUBLIC COMMENTS: Pages 1033 to 1046

4

5 WITNESSES: PAGE

6 STEVE TARLTONDirect Examination by Ms. Lucas 820

7 Direct Examination by Mr. Goad 831Cross-Examination by Mr. Stills 839

8 Cross-Examination by Mr. Sandler 965Cross-Examination by Mr. Grossman 1001

9 Redirect Examination by Ms. Lucas 1021Redirect Examination by Mr. Goad 1025

10 Recross-Examination by Mr. Stills 1029

11

12 EXHIBITS:

13 Exhibit 14 - 841

14 Exhibit 15 - 858

15 Exhibit 16 - 951

16 Exhibit 17 - 951

17

18

19

20

21

22

23

24

25


5/265



820

1 Saturday, November 10, 2012, 8:35 a.m.

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

3 THE COURT: We're reconvened. Let's go on

4 the record. Anybody have anything mechanical we need to

5 deal with before we start with Mr. Tarlton? That's my

6 understanding of the agenda.

7 Mr. Tarlton, here's the hot seat.

8 STEPHEN TARLTON,

9being first duly sworn, was examined and testified as

10 follows.

11 THE COURT: State your full name for the

12 reporter, if you would.

13 THE WITNESS: Stephen, S-T-E-P-H-E-N, Farris

14 with an A, Tarlton, T-A-R-L-T-O-N.

15 DIRECT EXAMINATION

16 BY MS. LUCAS:

17 Q Morning, Mr. Tarlton. I'm Olivia Lucas for

18 Energy Fuels. I'm going to turn off the projector for a few

19 minutes, because I understand it's pretty loud for the court

20 reporter.

21 So Mr. Tarlton, what's your role at CDPHE?

22 A I'm the manager of the radiation program.

23 Q And how long have you been with the

24 Department?

25 A Since 1993.


6/265



821

1 Q Okay. Can you tell us a little bit about

2 your experience with uranium projects.

3 A Okay. When I was working for a contractor at

4 the EPA, I oversaw the remedial investigation, feasibility

5 studies for the Denver radium sites. Those were radio

6 materials located all over Denver, neighborhoods and

7 buildings and so on.

8 And then in 1993, I started providing

9oversight for the State on the Rocky Flats cleanup, did that

10 until 2003, and then became the unit leader of the Radiation

11 Management Unit, which actually deals with radioactive

12 materials, licensing and regulation of those materials.

13 And had that job until, I think, 2009, I

14 became the manager of the program. That program includes

15 radioactive -- regulation of radioactive materials,

16 regulation of radiation machines, and some radon education.

17 Q Okay. And were you in your current position

18 at CDPHE when Energy Fuels approached the Department about a

19 mill license in the 2006/2007 time frame?

20 A I think I was in the unit leader position at

21 that time.

22 Q And can you please describe your involvement

23 with the development and review of the Energy Fuels license

24 application?

25 A Okay. Energy Fuels came to talk to us and


7/265



822

1 told us what they had in mind; we were trying to help them

2 understand that the regulations required. Also there were

3 statutory changes that had been put in place twice in the

4 2002/2003 time period that had some specific requirements

5 that we needed them to comply with. So we had to explain

6 that to them as well.

7 Q And did you review the license application

8 after it was submitted?

9 A Yes. We had to do a completeness review; we

10 had 30 days to do that. And that determination was whether

11 or not the application was substantially complete, whether

12 the major pieces were there that was allowing us to do an

13 adequacy review.

14 Q Okay. And is this substantial completeness

15 review, is that a process that CDPHE generally uses in

16 reviewing applications?

17 A Not as for uranium applications, those

18 requirements were put in in the 2002/2003 bills. So that

19 that was a specific step in that process with the timeline.

20 Q Okay. And now going more general, what kind

21 of contact does the Department have with an applicant

22 generally during the application process?

23 A Just in general, any application?

24 Q Any for radioactive.

25 A Most often what happens is we're contacted,


8/265



823

1 they'll ask us questions about what effects of the

2 regulations apply to their kind of facility. Sometimes

3 they'll come in and meet with us, sometimes they'll send us

4 draft information, and we'll give them feedback on what

5 specific aspects are required to comply with.

6 Then we usually receive an application from

7 them and supporting materials that we direct them to

8 provide.

9 Q And is there generally communication between

10 the applicant and the Department after you, the Department,

11 has received the application?

12 A Absolutely. It can vary from phone calls or

13 e-mails, just to collect additional information or

14 clarification, to actually having them come in and explain

15 to us what they need. We also have -- can submit formal

16 RFIs, Requests for Information, telling them we need more

17 specifically for them to address these issues.

18 Q Can you describe now more specific to Energy

19 Fuels the interaction between the Department and Energy

20 Fuels after the initial license application was filed?

21 A Well, there wasn't much in the completeness

22 review stage, because it's a very short time period. But

23 once we had determined the application was complete, in our

24 letter determining it was complete, we identified for them

25 some areas where we would need -- we knew at that point we


9/265



824

1 would need some additional supporting information.

2 And so shortly after that, I think we had

3 some communications with them. Some of those would have

4 been e-mail or phone, and I think we had several meetings

5 with them.

6 Q Okay. And did you also -- you mentioned

7 earlier Request for Information, formal Request for

8 Information?

9A Yes, we had, I think it was four formal

10 Requests for Information. RFIs, if we use that term.

11 Q Okay. I think we will. And did Energy Fuels

12 answer all the questions that the Department asked them to?

13 A Yes, they did.

14 Q And this case, the initial license documents,

15 application documents were filed in 2009, and then you

16 discussed there was some communication between the

17 Department which stretched into the 2010 time frame with the

18 RFIs. So it's now 2012; do you consider the license

19 application to be stale in any way?

20 A No.

21 Q Can you tell us a little bit about licensing

22 actions Energy Fuels can expect in the future insofar as

23 their future action with CDPHE?

24 A Well, there's a whole variety of things that

25 will happen. And this is common as a facility gets in place


10/265



825

1 and goes through various processes for development, getting

2 up to speed and running.

3 Routinely we see changes in personnel, those

4 generally are accommodated through license, if it's a named

5 person on the license. We will probably end up working with

6 most facilities on their procedures to make sure their

7 procedures are reflecting what they're actually doing.

8 For a new facility, it can be complicated.

9Very often, even though they know what they want to do and

10 how they're going to do it, by the time they get around to

11 purchasing the equipment or setting up the rooms or the

12 processes, there have to be changes made. And so we

13 frequently see license amendments addressing those kinds of

14 issues.

15 Q And are the procedures for license

16 amendments, are those statutory procedures or internal to

17 the Department or --

18 A Both.

19 Q And how often would the licensee have to come

20 back for a renewal?

21 A Most licenses are issued for five years; we

22 have the authority to go longer. And for some facilities,

23 once they're in the stable operating mode, it might make

24 sense to go for a longer time period.

25 Q And how about the financial warranties, does


11/265



826

1 the Division or Department have an opportunity to review

2 those?

3 A Yeah, we usually look at the financial

4 warranties at the beginning of the facility operation, base

5 it on what they're start-up process is going to be.

6 There's a requirement that financial

7 warranties be assessed annually. The applicant or the

8 licensee has to give us annually information about what

9changes might have occurred during the previous year that

10 would affect their financial warranty.

11 That applies if there's a spill, if there's a

12 change in the way they're operating. Sometimes, for

13 example, a laboratory facility might have had accidents that

14 need to be addressed, and that would change the financial

15 warranty.

16 On the other hand, there are some facilities

17 where they've completed the clean-up and the financial

18 warranty would be decreased. But we would look at that on

19 an annual basis, just as a reasonably quick review of

20 changes. And then at the renewal stage, roughly once every

21 five years -- or as often as three years -- we would look at

22 it and see if there are significant changes in the way costs

23 were estimated for the surety.

24 The annual review also has to take into

25 account inflation or cost of living, whatever that change


12/265



827

1 is.

2 Q Does the annual review involve the public in

3 any way?

4 A Yes, there's a requirement now that those

5 annual reviews be available for public comment. We have

6 always posted those for public to view but have not

7 necessarily had formal public comment periods.

8 Q Going back to the Energy Fuels license, what

9was -- can you describe the involvement of any other

10 agencies into your consideration of the application?

11 A Sure. One of the things we do is we're

12 required to look at a broad swath of potential impacts

13 associated with the license. So we communicate with those

14 agencies with that expertise. So at a state level, we

15 communicated with Department of Transportation, Division of

16 Wildlife, Department of Public Safety, the Department of

17 Local Affairs, the state historic preservation officer.

18 Trying to think. They're listed in the EIA,

19 but there were a whole wrath of people we communicated with

20 -- so in soliciting their input, what we did for most of the

21 state agencies was send them sections of the document that

22 related to their jurisdiction, or their knowledge, and asked

23 them for their input on that.

24 Sometimes we received that in a formal way,

25 sometimes it was a communication. And so sometimes we


13/265



828

1 actually just had to go talk to them and get information

2 from them about that information.

3 Q Okay.

4 A Now, that was at a state level. We also

5 communicated with lots of local agency people. We

6 communicated with the elected officials in Montrose County,

7 and Nucla and Naturita. We also, for that matter,

8 communicated with San Miguel County commissioners and the

9town councils of Telluride and Ophir.

10 We spent time with staff from the county,

11 looking at various issues, including the sheriff's office,

12 the planning office, the health people. Seems like there

13 was someone else -- yeah, Public Works was helpful to

14 understanding how the infrastructure and transportation

15 issues would be addressed over time.

16 So that was some of the stuff we did.

17 We were also -- trying to think if we talked

18 to other people. I think we had some limited discussion

19 with EPA about their permitting requirements. Of course we

20 dealt with a lot of internal people with the Department,

21 their pollution control division staff, the water quality

22 control staff.

23 And within my division, I have access to

24 people that work in the solid waste program that do landfill

25 design and work with that. And just handfuls of other


14/265



829

1 people.

2 Q And you mentioned another permit, and I know

3 Mr. Filas testified the other day that there was a list of

4 other permits that Energy Fuels needs to acquire that was

5 provided in its application as sort of a courtesy list.

6 How does the licensing process work in

7 relation to other permits needed by Energy Fuels?

8 A Well, each entity would have their own

9authority, their own licensing process or permitting

10 process, in their case.

11 So what we do is generally require that a

12 licensee have all of the necessary environmental permits in

13 place prior to being able to operate.

14 Q Okay. So it's prior to operation, but not

15 prior to license issuance by your --

16 A That's correct.

17 Q Yesterday we heard about from Ms. Travers a

18 lot of testimony regarding water supply at this site. Is

19 there a specific requirement in the Radiation Control Act or

20 regulations that required the applicant to prove up the

21 water supply for their facility?

22 A It's not specifically addressed that way.

23 However, the facility is required to do whatever they need

24 to do to meet all the health and safety requirements.

25 And so in a facility like this, one of the


15/265



830

1 things they have to do is be able to prove that they have

2 enough capability to provide dust control, and that

3 generally is water supply. We evaluated the information we

4 had and determined that the minimum production of the wells

5 would be adequate for dust control.

6 So if there were a problem, that, I mean,

7 under any circumstances Energy Fuels would be required to

8 provide adequate water for dust control, whether they were

9hauling water or not.

10 But even if they had to curtail operations

11 just to have enough water to provide dust control, we would

12 require that.

13 Q Okay. So essentially they need enough water

14 to be able to be in compliance with their license?


16 Q And are you aware that in the operating plan,

17 in the mission, Energy Fuels does, in fact, talk about

18 trucking water in for operations in case the wells don't

19 produce?

20 A Yes. And we're aware they obtained water

21 rights or a contract to be able to haul that water to have

22 access to that much water.

23 Q Okay. I guess my final question, in your

24 role in the Radiation Control Department -- Control

25 Division, excuse me, and after having reviewed the license


16/265



831

1 application, do you think the Energy Fuels application

2 contains all the necessary information for CDPHE to make a

3 licensing decision?

4 A Yes.

5 MR. STILLS: I would object to that question

6 to the extent it asks for a legal conclusion.

7 THE COURT: I think it's opinion; that's the

8 way the question was asked.

9MS. LUCAS: Yes.

10 THE COURT: I'll let Mr. Goad finish his note

11 before I call upon him.

12 MR. GOAD: I understand Mr. Stills was going

13 to do cross.

14 MR. STILLS: I think it's probably more

15 efficient if you do your direct as well and then I'll cross

16 on both.

17 MR. GOAD: Okay.

18 If it's okay, Your Honor, I'll maintain my

19 seat?

20 THE COURT: Absolutely.

21 MR. GOAD: For the record, my name is Jerry

22 Goad for the Attorney General's Office. I represent the

23 Department of Public Health and Environment.

24 DIRECT EXAMINATION

25 BY MR. GOAD:


17/265



832

1 Q Mr. Tarlton, as part of your review with the

2 Energy Fuels application, did you or your staff prepare an

3 environmental impact analysis?

4 A Yes.

5 Q Could you describe generally the process you

6 used to do so.

7 A Okay. Energy Fuels was required to submit an

8 environmental report, and so we took that initially and

9looked through to determine what specific issues that report

10 identified, if that had been done thoroughly, so that we

11 could address all of those environmental impacts that might

12 come up from this facility.

13 We took those and divided them up among

14 technical staff that had specific areas of expertise

15 associated with that specific issue.

16 We also then communicated with other agencies

17 to determine what they thought about those specific issues

18 as it related to this type of facility or this specific

19 location.

20 So we started working through that process.

21 In addition, we received significant input from other

22 entities. We had quite a few technical documents submitted,

23 and we went through each of those technical documents and

24 identified the information in those documents that related

25 to this application.


18/265



833

1 So we started gathering the pieces of

2 information that related to each potential impact and

3 started looking to see whether or not we had enough

4 information to evaluate those impacts and what we would need

5 to supplement that, if necessary.

6 So we would spend time looking through the

7 various sources of information to identify what all we had

8 to look at for that specific impact, and how we would put it

9together.

10 I will mention that during this process, we

11 received significant input from the public and other

12 entities about the issues that they thought should be

13 addressed in the environmental impact assessment. So we

14 made sure to capture those and try to make sure they were

15 addressed in the impact assessment analysis, I guess is what

16 it's called.

17 Q Can you briefly summarize the environmental

18 impact analysis that you ended up producing?

19 A Okay. Yeah, I guess I should mention that we

20 did have mandatory -- most mandatory -- and voluntary public

21 meetings to gather this information. We ended up with two

22 mandatory meetings and six meetings we held with additional

23 people to make sure we were getting input from as broad a

24 spectrum as we could.

25 Like I say, we reviewed the technical


19/265



834

1 application to determine which aspects of the facility

2 design or siting had potential impacts on the environment.

3 We're all required to look at social and economic issues,

4 transportation, and so we had to look at that whole swath of

5 items to determine where should these be addressed and how

6 should we organize the report around those topics.

7 We're also -- Energy Fuels is required to

8 support the Montrose County review of the environmental

9report and the application. And we received two reports

10 from Montrose County related to this site. They submitted

11 two reports to us that we used in evaluating impacts and

12 identifying areas of concern that need to be addressed.

13 So our environmental impact assessment looked

14 roughly at the social and economic issues, environmental

15 issues, which included both the physical and the biological

16 air and water issues. We looked at the effects of radiation

17 and chemicals at the facility, worker and public safety,

18 transportation was looked at in some detail, and

19 specifically as it related to accidents.

20 We looked at, as I said, social and economic

21 conditions, land use, things like that, and also attempted

22 to do a cost and benefit analysis of the mill.

23 In addition, what we tried to do was identify

24 very specific issues that had been raised as concerns by the

25 public or other entities. So in the environmental impact


20/265



835

1 analysis, we included a paragraph or a section on those

2 specific areas. And that included cumulative impacts,

3 windblown contamination, alternate feed, boom and bust

4 cycles, process water availability, the wildlife impacts,

5 the impoundment liner design, catastrophic conditions,

6 including leakage, as was discussed yesterday.

7 We've had taxpayer funds spent on clean-ups,

8 financial status of Energy Fuels, environmental justice,

9radiation dangers, and even in one section had talked about

10 issues raised associated with adaptive management.

11 MR. STILLS: Your Honor, if I may note that

12 the witness is testifying from notes; I'd like a copy of

13 those before we go to cross, if I may.

14 THE COURT: All right.

15 MR. GOAD: That's fine.

16 Q (BY MR. GOAD) I'm sorry, anything else to

17 add before the interruption?

18 A No.

19 Q Couple other final questions, Mr. Tarlton:

20 Did you post the application and the environmental impact

21 analysis on the Department's web site?

22 A It was posted on their web site, that's

23 correct.

24 Q And you heard about -- or the application was

25 testified to as being 15 volumes?


21/265



836

1 A Something like that, yeah.

2 Q And that was posted on the web site as well?

3 A Yes.

4 Q Could you describe the communication you had

5 with the public during the application review process.

6 A Okay. Well, when we started the process, we

7 set up a web site -- actually, we had already set up a web

8 site for documents, because we had received some documents

9before the application was submitted in draft. And so we

10 put those on the web site as soon as they came in.

11 In addition, we attended some of the public

12 meetings associated with the county action so that we could

13 get some background on what kinds of issues were being

14 raised and what concerns there were. And that process we

15 identified not only the issues, but individuals and

16 organizations that were interested, and we developed an

17 e-mail list based off the web site where we ask people,

18 through the web site, if they wanted to sign up to receive

19 e-mails or hard copies of new postings, announcements about

20 new postings or meetings that were coming up and so on.

21 And we maintain that process throughout the

22 entire decision making process.

23 So in addition, as I mentioned, the statute

24 requires within 45 days of the receipt of the declaration of

25 completeness, Energy Fuels is required to have a first


22/265



837

1 public meeting, slash, hearing, and then within 30 days of

2 that meeting, slash, hearing, they're supposed to have

3 another meeting, slash, hearing.

4 So we, at those meetings, wanted to collect

5 as much information about interested parties, et cetera, as

6 we could in addition to the comments and technical

7 information that would be provided.

8 So that was a pretty onerous process. The

9 difficulty is 15 volumes is pretty hard for the public to

10 digest within 45 or 75 days. And we felt that that didn't

11 give people a really fair chance to scrutinize the

12 application, identify what their issues might be.

13 So we set up a process where we wanted to

14 hold additional public meetings further out. So the two

15 public meetings were January 21, 2010, in Nucla, and

16 February 17, 2010, in Montrose.

17 The San Miguel County Commissioners asked if

18 we would come to one of their meetings, and so we attended

19 on February 18 one of the county commissioner meetings that

20 was announced and had a large number of public there to

21 collect information and their issues associated with the

22 application.

23 We also had another public meeting in

24 Montrose on June 8, 2010, in Telluride on June 9, 2010,

25 again at the request of the San Miguel County Commissioners


23/265



838

1 and at the request of the town assembly, I think it's

2 called, we had a meeting at Ophir June 10, 2010.

3 Then later in July we had meetings on July 13

4 in Naturita and in Paradox on the same day.

5 Q You mentioned a 45- to 75-day time frame

6 within which the public could look at the application.

7 Where does that come from?

8 A That comes from the Radiation Control Act

9that was changed in 2002/2003, as I understand it, by the --

10 at the instigation of the Cotter/Canon City issue. And so

11 there was that statute was changed to put in specific time

12 lines and requirements for public process.

13 MR. GOAD: That's all I have, Mr. Tarlton.

14 Thank you.

15 THE COURT: I'll let you two look at each

16 other and decide who goes first.

17 MR. STILLS: All right. I need a copy of

18 those notes.

19 THE COURT: For those on the phone, we're

20 dealing with electrical disconnects.

21 MR. STILLS: And I'm going to work from here

22 with my notes; and is it okay if I sit?

23 THE COURT: Sure.

24 MR. STILLS: Just want to see my computer.

25


24/265



839

1 CROSS-EXAMINATION

2 BY MR. STILLS:

3 Q You testified just now that there was some

4 changes in 2002/2003, instigated by Colorado Citizens

5 against Toxic Waste?

6 A I don't think I named Colorado Citizens

7 Against Toxic Waste, I said associated with the Cotter Mill.

8 Q People from Canon City?

9A Yes.

10 Q Was Cotter involved in proposing that

11 legislation?

12 A I don't know.

13 Q Was the community members involved with

14 proposing that legislation in 2002?

15 A That's my understanding.

16 Q From where do you gain that understanding?

17 A From discussions with both activists and

18 people in Cotter and people with the Department.

19 Q Do you have direct personal knowledge of who

20 instigated the 2002/2003 legislation?

21 A No.

22 Q So you can't testify to that?

23 A I don't know the meaning of the word

24 "testify." I'm under oath; I'm explaining what I know.

25 Q Okay. You don't know who instigated, based


25/265



840

1 on your personal knowledge, the 2002/2003 legislation?

2 A I was not involved in that process.

3 Q Okay. Thank you.

4 First I'd like to start out with -- and I

5 believe this is entered into the record at, I believe, 11.

6 The Department's --

7 THE COURT: Your Exhibit 11?

8 MR. STILLS: My Exhibit 11. The Department's

9response. I'm close on that; I have to confess my exhibit

10 list is not necessarily accurate. It's the Department's

11 response to discovery requests. It may be 8 or may be 10.

12 THE COURT: 10 is the time sheet.

13 MR. STILLS: Then it's either 10 or 11. I

14 thought if it's not entered into the record we need to enter

15 it into the record. And it's distributed to all counsel.

16 THE COURT: I may have it electronically. I

17 have four exhibits and one you gave me in the book.

18 MR. STILLS: It's right here.

19 MS. LUCAS: Can you let us know what the date

20 on this is?

21 THE COURT: It was filed with me 11/7/12.

22 It's -- hang on. Mr. Goad signed it on the 4th of October.

23 The copy I have in front of me has not got Mr. Tarlton's

24 signature on it, but it's got a blank for that. So I assume

25 that the original document has a signature on it.


26/265



841

1 THE WITNESS: That's correct.

2 THE COURT: And just for the record, to make

3 this clear, I'll mark this as Exhibit 14, so we know.

4 MR. STILLS: Okay.

5 Q (BY MR. STILLS) And we asked you -- and this

6 is number 11, on page 7,

7 THE COURT: Do you want me to give this to

8 the witness?

9MR. STILLS: Yes, please.

10 Q (BY MR. STILLS) Just for the record, I

11 guess, on page -- it's the second page, 14, I believe, on

12 here, but on the very last page. Is that your signature?

13 A Yes.

14 Q And do you recall preparing -- certifying

15 that document is accurate?

16 A Yes, generally.

17 Q Can you read question number 11, please? Out

18 loud, please.

19 A 11?

20 Q Yes.

21 A "Please describe all opportunities for other

22 federal, state, and local government entities with

23 jurisdiction and/or control over the uranium mill proposal

24 to participate in the preparation of the EIA."

25 Q Is that what you testified to here today?


27/265



842

1 A I think so.

2 Q Can you read the last bold paragraph, which

3 is your response?

4 A "Subject to and without waiving these

5 objections, CDPHE responds as follows: Assuming that the

6 term 'participate in preparation of the EIA' means actual

7 drafting of the EIA or a portion of it, there is no

8 requirement that other federal, state, or local agencies do

9so."

10 Q Are those different answers, what you gave in

11 the discovery versus what you're testifying to today?

12 A No.

13 Q Can you explain the difference?

14 A There's no requirement that other federal,

15 state, or local agencies do so. I don't think there's a

16 requirement that anybody else write part of the EIA.

17 Q Is there a requirement that you respond to

18 our discovery requests by giving us a description of what

19 you just testified to here today on direct?

20 A Well, your question asked for entities with

21 jurisdiction and/or control over the uranium mill proposal

22 who participate in the preparation of the EIA.

23 Q Okay. Describe all opportunities, I believe,

24 is the active part of that request. For those agencies to

25 participate, you came here and testified today to those


28/265



843

1 opportunities that you provided in a whole array of

2 pre-licensing, post-licensing, preparation of the EIA.

3 So Your Honor, as far as that line of

4 questioning, I would request that we not release this

5 witness until I'm provided some satisfaction to that

6 discovery request.

7 THE COURT: Can I see the question?

8 Can I borrow that back from you?

9Question can be read a number of ways, folks.

10 I'm not -- what satisfaction are you looking for?

11 MR. STILLS: What I'm looking for is at least

12 on the record to be able to bring Mr. Tarlton back, if

13 necessary, after I'm able to go through the records

14 concerning whether any other agency had any opportunity to

15 actually participate in the preparation of the EIA. And I

16 guess I can go look through it, I guess, but I would

17 appreciate or at least request the opportunity to keep this

18 witness available for recall.

19 THE COURT: Well, to the extent the hearing

20 remains open, I presume every witness we're having can be

21 recalled at some point in time.

22 MR. STILLS: Okay. I just wanted to make

23 sure this witness is given his direct.

24 THE COURT: Okay. You want this back to the

25 witness?


29/265



844

1 MR. STILLS: I'll take this back.

2 Actually, this is your copy.

3 THE COURT: It is. I thought the witness

4 needed it.

5 Q (BY MR. STILLS) Okay. So in the preparation

6 of the environmental impact analysis, very specifically, the

7 environmental impact analysis, it was your testimony that

8 you sent sections of documents and asked for input; is that

9correct?


11 Q To whom did you send those documents?

12 A There's a list in the EIA, but as I said, I

13 communicated with people at Department of Transportation --

14 Q No, no, let's stay with the question, please.

15 To whom did you send sections of the document?

16 A To whom? Okay. In some of the agencies it

17 was hard to find the right person that would respond.

18 Department of Transportation was one of those. I sent

19 letters.

20 Q So did you sent a copy of the document?

21 MR. GOAD: Your Honor, please let the witness

22 answer the question.

23 MR. STILLS: Sorry about that. I'll let my

24 coffee wear off.

25 THE COURT: Go ahead, Mr. Tarlton.


30/265



845

1 A Well, for example, at the Department of

2 Transportation, I communicated with them to find out who was

3 the right person to review the transportation plan, I think

4 it was, that Energy Fuels had developed. I went through two

5 or three different people and finally was able to

6 communicate with two people that I sent the document to. Or

7 they had already received it, I think, in that case. And

8 consequently was able to get a response back from them on

9issues around transportation.

10 I don't remember those names, but I put them

11 in one of the responses to Travis's request. I had a whole

12 list of names of people that we spoke with. I don't recall

13 that off the top of my head. I think one of them was James

14 B. Horn at Transportation, but I don't recall the other

15 name.

16 In addition, at the Division of Wildlife, we

17 spoke with, I think we sent it originally to Renzo

18 DelPiccolo, and then there was second person who had been

19 working on that issue with him.

20 And then there was a group of people that

21 were working on the sage grouse question, and I spoke with

22 them, but I don't think they had received any of the

23 documents that Energy Fuels prepared.

24 Q And please, as we go forward, let's listen

25 very carefully to my questions.


31/265



846

1 A I tried to.

2 Q And please try to answer them honestly and

3 straightforwardly and what I asked about.

4 And the only thing we're talking about right

5 here at the moment is the environmental impact analysis.

6 Are you aware of what that document is?

7 A The environmental impact analysis?

8 Q Yes.

9A That I was responsible for? Yes, I'm aware

10 of what that is.

11 Q Okay. And that's a standalone --

12 A I'm sorry, did I understand your question

13 correctly?

14 Q No, you may not have.

15 A You asked if I knew what the environmental

16 impact analysis was, and I said I did. Is that what -- are

17 we talking about the same environmental impact analysis?

18 Q I believe we are. My next question is the

19 one I want you to listen very closely to, because we're only

20 talking about the environmental impact analysis. I believe

21 you were testifying about talking to different people,

22 having them review Energy Fuels materials?

23 A Yes.

24 Q I'm asking very specifically only about the

25 EIA. You understand?


32/265



847

1 A Okay. Now I understand what you're asking.


3 A Yes.

4 Q Did you send sections of that document and

5 ask for input to other agencies?

6 A No.

7 Q Thank you. Were other agencies involved in

8 the drafting of the EIA?

9A Other agencies provided some written

10 materials in response to either my questions or the Energy

11 Fuels materials that they had reviewed. Those materials

12 were usually incorporated into the EIA in some manner.

13 Q After those materials were incorporated, you

14 never provided a draft back to make sure the EIA accurately

15 reflected their input; is that correct?

16 A That is correct.

17 Q Thank you. Would the EIA, did you send any

18 sections of that document to Energy Fuels during the

19 drafting phase?

20 A No.

21 Q Did Energy Fuels review the EIA before it was

22 finalized for accuracy based on the input that they gave

23 you?

24 A No.

25 Q Was any person outside of the drafting team


33/265



848

1 sent a copy of the draft EIA for review?

2 A I don't think so.

3 Q Think about it for a second.

4 A Okay.

5 Q I'm sorry, was your answer no?

6 A I'm thinking about it.

7 Q I'm sorry, I thought you said something.

8 A I was listening and you told me to think

9about it.

10 Q Okay. I'll repeat it.

11 Can you read back the question?

12 (Whereupon the preceding question was read

13 back by the reporter.)

14 A The short answer is no, the drafting team for

15 the EIA may not have included all the technical people that

16 worked on the license review. So some of the people that

17 worked on the license review may have reviewed a section of

18 the EIA if we extracted information from their license

19 review for the EIA.

20 They may have reviewed it, but those were

21 internal people working on our team, but not necessarily the

22 EIA team.

23 Q Who is the EIA team?

24 A Primarily it was me, Mr. Egidi, Warren Smith,

25 I think Marilyn Null helped, Edgar Ethington. Trying to


34/265



849

1 think if there were other people. I think that's about it.

2 Q Was there a formal designation of those

3 people being on the EIA team?

4 A No.

5 Q So is this kind of an ad hoc approach to

6 drafting?

7 A As -- well, I was compiling information

8 prepared by technical people, both in and outside the

9department. Some of that information was prepared as part

10 of the license application review process, some of that

11 information was prepared to evaluate environmental impacts.

12 So as necessary, I involved whichever issue

13 we needed. A lot of the information, as you might

14 appreciate, was the same.

15 If we're evaluating whether or not a specific

16 activity meets regulatory requirements, satisfies things,

17 that information would be used as part of the environmental

18 assessment.

19 Q And did you keep track of that information as

20 it came in?

21 A I managed that information as it came in.

22 Q But you didn't keep any written record of

23 what was coming in?

24 A You mean like on an ongoing basis I got this

25 from this person on this date?


35/265



850

1 Q Correct.

2 A No. I did track when people owed me things,

3 and tried to, on an ongoing basis, move them into a draft

4 document so that we would be able to know where we had holes

5 and where we didn't.

6 Q What other persons besides those that you

7 listed were provided a copy of the draft EIA? You said the

8 EIA team all got a copy of it; is that correct?

9A I said it's likely that the EIA team reviewed

10 parts of the EIA.

11 Q It's likely?

12 A Yes. I don't know who reviewed which parts,

13 so...

14 Q If we were to try to understand what kind of

15 expertise was brought to bear in preparation of the EIA, how

16 would we know that?

17 A Okay. You asked two questions: One was

18 review of the draft EIA, the other was the technical

19 capability brought to bear to address to do the EIA. And

20 those are different things.

21 The draft was reviewed by a limited number of

22 people. Draft pieces may have been reviewed by a larger

23 number of people, depending on who authored it. I probably

24 had the author take a look at that section, if he had not

25 already.


36/265



851

1 But no one was brought in to do an

2 independent review of the EIA.

3 Q Were you primarily responsible for preparing

4 the EIA?

5 A Yes.

6 Q Are all the decisions in the EIA reflective

7 of your experience and review?

8 A No. Many of those are reflective of other

9 people's experiences.

10 Q Okay. I'm still trying to understand how it

11 can be reflective of those people's review if they weren't

12 provided a draft after they had gotten -- or after you'd

13 taken their input and put it into the document. Can you

14 explain that for me, please?

15 A Well, for example, there's an analysis of

16 what would happen in ground water from leakage, okay, so we

17 addressed a question that had been raised -- actually, by

18 Sheep Mountain -- on what would happen if there was a leak,

19 where would the water go, how would that happen. That

20 section was drafted in response to that question.

21 The draft that was given to us of that

22 analysis was reviewed and found to be, yes, it's good. And

23 then we took that and put that into the EIA. So the person

24 who did that was not required to review the whole EIA. He

25 had already reviewed that piece of information that he


37/265



852

1 developed to make sure it was still intact.

2 Q And for that particular information you're

3 talking about who did that review of the water issue, that

4 was raised by Sheep Mountain Alliance?

5 A Edgar Ethington.

6 Q When you prepared the EIA, did you ask

7 Mr. Ethington for the materials that he based his analysis

8 on?

9A Well, he was required to do that as part of

10 the analysis of the license application.

11 Q And did you maintain Mr. Ethington's analysis

12 of Sheep Mountain Alliance's comments?

13 A His analysis was put in the EIA, so it's

14 maintained in the EIA.

15 Q How was Mr. Ethington's analysis transmitted

16 to you?

17 A I believe it was electronically. And he sent

18 me a discussion of that issue.

19 Q And what did you do with it when you received

20 it?

21 A I reviewed it and queued it up as a piece of

22 the EIA.

23 Q Did you change anything in that analysis

24 before putting it in the body of the EIA?

25 A Not of the analysis. There may have been


38/265



853

1 some editorial changes.

2 Q How would one review the editorial changes

3 that you made to Mr. Ethington's technical review?

4 A Today?

5 Q Sure. How would one review that?

6 A I don't think you'd be able to.

7 Q Why is that?

8 A We didn't keep a redlined, ongoing version.

9There were editorial changes made to that document

10 repeatedly throughout its development.

11 Q So we only have your final decision on what

12 goes into the EIA; we don't have the technical staff's

13 analysis; is that correct?

14 A The technical staff's analysis is in the EIA

15 in this case, so you have it.

16 Q According to whatever changes you made to it?

17 A Yes.

18 Q Thank you. Is the process we just discussed

19 with the Sheep Mountain Alliance comments concerning water,

20 was that same process used for all other issues?

21 A It depends on what sources of information we

22 had. For example, when we used information from external

23 parties, we didn't -- you know, we extracted that from the

24 information they had provided to us.

25 Q Let me be more specific. For the other


39/265



854

1 people within the EIA team, the technical people from whom

2 you received portions of the EIA.

3 A Okay.

4 Q The same transmittal of those, of the

5 information from Mr. Ethington that you described was used

6 for all other persons working on the EIA; is that correct?

7 A I believe so, yes.

8 Q Thank you. For persons other than the

9technical team who provided you information that went

10 straight into the EIA, did you keep a record of what those

11 persons had sent you?

12 A You mean documents we received or issues we

13 received?

14 Q Documents.

15 A Yes.

16 Q You keep those documents in a single place?

17 A Most of the documents that -- all the

18 documents I believe were sent to the record -- to the file,

19 yes.

20 Q And do you know what would be the label, what

21 would be the title of that file?

22 A Generally, we had two areas: We have a

23 section of our file that is notes, and that is where a lot

24 of note kind of information would have gone. We also had a

25 public process section, and that's where documents submitted


40/265



855

1 from external people -- and I hate to say unsolicited, but

2 opposed to where I asked the Department of Transportation

3 for input on a specific issue, and they gave me that input.

4 For example, the documents that all of the experts you

5 brought forth submitted are in the public comment file.

6 So those are all in those documents.

7 Q Before you sent that record to the District

8 Court, did you ask -- I'm sorry, did you -- you didn't ask

9 all of the EIA team for their e-mails and notes that might

10 not have been in that file, did you?

11 A No, they're required to put anything of

12 significance into the file on an ongoing basis.

13 Q But you made no effort to ensure that all

14 those materials were in that official record?

15 A No.

16 Q Before you finalized the EIA -- when did you

17 finalize the EIA?

18 A Well, it was finalized at the same time that

19 we finalized the now vacated -- is that the word -- license

20 and decision analysis. So that would have been early

21 January 2011, I believe.

22 Q And that was the final, no more editing was

23 done on that document after January 7, 2007; is that

24 correct?

25 A If that's the correct date, yes.


41/265



856

1 Q Assuming that's the correct date. But it's

2 within days, if we're off; is that correct?

3 A Yeah. I don't know the date. But yes.

4 Q 9th, 6th, but on or about January 7, 2011.

5 So before you finalized that the EIA, did you

6 ask all the technical staff for their notes and records?

7 A I don't think specifically. We had

8 occasional meetings and everybody was encouraged on an

9ongoing basis to put anything we needed in the file.

10 Q But if something hadn't been transmitted to

11 the file, you made no effort to figure out, if somebody

12 might have something on their desk; is that correct?

13 A I did not go through everybody's files to

14 determine whether or not there wasn't something that needed

15 to be put in the file.

16 Q And you just testified you never asked

17 anybody for it either; is that correct?


19 Q And were you the person who reviewed the EIA

20 to confirm whether or not it satisfied relevant legal

21 requirements?

22 A I know I did that. There may have been other

23 people that did that as well.

24 Q Was the EIA submitted to the Attorney

25 General's office for review and analysis?


42/265



857

1 A No.

2 Q Were any outside consultants employed in the

3 preparation of the EIA?

4 A None. Not by us.

5 Q By other persons?

6 A I believe an environmental consultant

7 prepared the environmental report for Energy Fuels. I

8 believe you had environmental consultants that worked on

9documents that you submitted. We did not employ any

10 consultants.

11 Q Again, let's be real specific. Unless I say

12 otherwise, if we can, for now, at least, I'm only talking

13 about the EIA. And if one of us misspeaks and refers to

14 another document --

15 A Okay. No.

16 Q We do that from time to time. But I just

17 want to be real clear that everything that we're talking

18 about is about the environmental impact analysis.

19 A Okay.

20 Q So are we good on that?

21 A Yes.


23 As part of the discovery requests, there was

24 a request for information that addressed the qualifications

25 of all persons who assisted in preparation of the EIA. Were


43/265


44/265



859

1 Mr. Tarlton testified to people with

2 expertise who helped prepare the EIA. He listed some

3 general categories here in the discovery response they made.

4 THE COURT: Which question are we looking at?

5 MR. STILLS: Definitive list. I'm sorry,

6 question 3.

7 MR. GOAD: Is that interrogatory number 3?

8 MR. STILLS: Interrogatory number 3, thank

9you.

10 THE COURT: 3 is the general question about

11 participation?

12 MR. STILLS: Who assisted in their

13 preparation.

14 THE COURT: Okay.

15 MR. STILLS: And I'll be asking some more

16 questions on this, but I think it's certainly relevant in

17 both his direct testimony and the cross.

18 THE COURT: Folks, I'm sorry, I lost the

19 question we're arguing about. I understand this is Mr.

20 Tarlton's response to the inquiry about the qualifications

21 and experience and so forth of the individuals who

22 participated in this exercise; am I wrong?

23 MR. STILLS: Who assisted in the preparation,

24 that's correct. An objection was made to relevance, and I

25 would like to request Your Honor's ruling on it.


45/265



860

1 THE COURT: It's relevant. It's admitted. I

2 don't have any hesitation in admitting it.

3 MR. STILLS: Okay.

4 (Pause in proceedings)

5 THE COURT: You need this, to use this?

6 MR. STILLS: I think I do. As much as I'd

7 like everyone to have a copy of it -- I can actually bring

8 it up electronically. So I can work from that.

9THE COURT: Sorry we don't have the Federal

10 Court electronic process.

11 MR. STILLS: Once you get used to it...

12 THE COURT: That's a burden I don't think we

13 can put on the Moose Lodge in Nucla, Colorado.

14 MR. STILLS: Okay. I have an electronic one.

15 We have merged technologies.

16 Q (BY MR. STILLS) Okay. Mr. Tarlton, if I

17 could direct you toward interrogatory 3. It's on page 3.

18 And I believe that's Exhibit 14.

19 THE COURT: Do you have a copy?

20 THE WITNESS: Yes.

21 Q (BY MR. STILLS) Could you just review that

22 for a moment, please.

23 (Pause in proceedings)

24 A Okay.

25 Q And I know the English language is not always


46/265



861

1 -- or any language subject -- to as much precision as we

2 would like as lawyers or people answering the questions, and

3 so I want to be very specific here, because it looks like

4 your answer to this question gave sort of the broadest

5 possible sweep of the state employees who assisted in

6 preparation; is that correct?

7 A These people provided information. So that

8 is correct.

9Q Could you read back my question, please?



12 MR. GOAD: Asked and answered, Your Honor.

13 THE COURT: What's the...

14 Q (BY MR. STILLS) Is there anybody on this

15 list who isn't -- in the state, is there anybody missing

16 from this list of state employees?

17 MR. GOAD: Your Honor, I'm going to object,

18 the question or the answer is couched in terms of Department

19 of Health employees.

20 I'm sorry, I withdraw that objection. I'm

21 looking at something else.

22 Q (By MR. STILLS) Yes, the question was framed

23 in the Department employees; it was answered in the context

24 of state employees. But let's go ahead and start narrowing

25 it down to who was who.


47/265



862

1 Is there anybody, any state employees, who

2 you can think of who is not on this list who assisted you by

3 providing information for the EIA?

4 A I don't think so.

5 Q If there were, would you have a record of it?

6 A In preparing this list, I went through all

7 the records I could identify where we had information to

8 where we received information from someone regarding the

9EIA. So I doubt it. I mean, that's what I did to develop

10 this list.

11 Q So you went back and reviewed documents to

12 develop this list?

13 A I reviewed the documents submitted and who

14 they were submitted by to develop this list. I didn't go

15 back through each document, but I did look at where we got

16 them.

17 Q You didn't review them for necessarily its

18 content?

19 A Yes.

20 Q You reviewed who was involved?

21 A Yes.

22 Q So this would be the broadest universe of

23 people, aside from relying on your memory, that we could

24 sort out who provided you information; is that correct?

25 A Yes.


48/265



863

1 Q Okay. And you're testifying here today that

2 you don't recall anyone else other than the people on this

3 list?

4 A I do not recall anyone else.

5 Q As we had this list, the Hazardous and Waste

6 -- Hazardous Materials and Waste Management Division, those

7 four people assisted in the preparation of the EIA; is that

8 correct?

9A I know the first three did; James Jarvis

10 provided information, but I do not know that he assisted in

11 the preparation of the EIA.

12 Q Did Mr. Jarvis review any drafts of the EIA?

13 A I don't remember.

14 Q Would review of the files provide information

15 on whether or not he helped draft the EIA?

16 A Well, I'm sorry, helped draft the EIA?

17 Q Yes.

18 A He provided information that was used in the

19 EIA.

20 Q Okay.

21 A He did not write the EIA. And I do not know

22 whether or not he reviewed any part of the EIA after he

23 submitted his section.

24 Q So he wrote a section?

25 A He wrote an analysis related to radiation


49/265



864

1 safety and dose assessment for another document that you

2 don't want to talk about, and that information was used in

3 the EIA as well.

4 Q I'm sorry, what do I not want to talk about?

5 A Well, you told me just to focus on the EIA.

6 Q Uh-huh.

7 A A lot of these people worked on the review of

8 the application and the development of the decision

9analysis. That decision analysis is a large volume of

10 material as well; we extracted material from that decision

11 analysis to use in the EIA.

12 So James Jarvis wrote material that was in

13 the decision analysis --

14 Q Okay.

15 A -- that was used as well in the EIA. I do

16 not know if he reviewed the EIA section that his information

17 was extracted into.

18 Q So the decision analysis, was it finalized

19 that you took that from, or was it still in process?

20 A It was still in process. These documents

21 were finalized at the same time -- concurrently.

22 Q So the decision analysis and the

23 environmental impact analysis were drafted concurrently?

24 A Yes.

25 Q And you swapped sections back and forth?


50/265



865

1 A Some sections were taken from the decision

2 analysis as they related to the environmental impact

3 analysis. I'm not aware of any environmental impact

4 analysis sections that were drafted and then used in the

5 decision analysis, but there might have been one.

6 Q And the decision analysis and decision in

7 this proceeding has been invalidated, and that proceeding

8 was invalidated; isn't that correct?

9A That's correct.

10 Q After that was invalidated, did you go back

11 and review the EIA to see if it remained valid despite those

12 court rulings?

13 A Well, the court ruling, as I understand it,

14 was just on having to hold another hearing, not on the items

15 of substance that were, as I understand, the judge denied.

16 MR. STILLS: Could you read back my question,

17 please?



20 A No.

21 MS. LUCAS: Your Honor, I'd like to object to

22 the term "invalidated"; in the District Court's order, they

23 set it aside.

24 THE COURT: I've read the order; it says what

25 it says. The order is a part of the record in this


51/265



866

1 proceeding, so...

2 Q (BY MR. STILLS) After the date of Judge

3 McMullen's ruling, did you do any analysis of the EIA to

4 ensure that it remained in conformance with his order?

5 A No.

6 Q After the date the EIA was finalized, I think

7 January 7, on or about January 7, 2011, have you conducted

8 any technical review to see if the EIA remains an accurate

9document?

10 A No.

11 Q All right. Let's get back to who prepared

12 the EIA. Did any other person conduct a review after

13 January 7, 2011, to ensure the EIA remained technically

14 accurate?

15 A To my knowledge, no. Although I suspect I

16 know you guys reviewed it, and so I assume that's what you

17 did. I assume Energy Fuels did it and other members of the

18 public reviewed it to see if they thought it was technically

19 accurate.

20 Q As the person responsible for issuing the

21 EIA, did anyone under your control or supervision review the

22 EIA after January 7, 2010, to ensure -- 2011, I'm sorry, to

23 ensure it remained technically accurate?

24 A I don't think so, no.

25 Q Let's turn back to this list of who helped


52/265



867

1 prepare or assisted. We'll go ahead and take care of that

2 and make sure we're specific about what we're talking about

3 here.

4 From the Hazardous Materials and Waste

5 Division, did any of those persons assist in the drafting of

6 the EIA?

7 A Yes.

8 Q Which ones?

9A Well, Warren Smith and Marilyn Null both did

10 editorial. And we had a lot of different materials

11 submitted by different people, so when we put those

12 together, we had a lot of basic editing work to make sure

13 things fit together, flowed smoothly, organization of the

14 report, and those kinds of things.

15 Other people submitted, as I mentioned

16 before, likely submitted information that was written into

17 the EIA, so that would have been their role.

18 MR. STILLS: Okay. Could you read my

19 question back, please?



22 Q (BY MR. STILLS) Only Warren Smith and Martin

23 (sic) Null; is that correct?

24 A They were the only ones that would have

25 worked with the entire document, yes, that's correct.


53/265



868

1 Q Did you hear Mr. Briskin testify that he

2 helped draft portions of the EIA?

3 A Yes.

4 Q Did any other person there help draft any

5 portions of the EIA in the Hazardous Materials and Waste

6 Management Division?

7 A Well, all of them had sections that they

8 wrote that were put into the EIA. Except for Peterson and

9Scheppers. Everyone else wrote something that became part

10 of the EIA.

11 I guess I'm not understanding what you're

12 trying to get to, because you keep asking a question that I

13 don't think I understand.

14 Q No, I appreciate it, and we'll go one

15 question at a time. And sometimes it may be confusing, but

16 we'll get through it. We'll get it figured out.

17 A I think I've tried to explain to you how it

18 worked, and you keep asking questions about it that don't

19 make sense to me.

20 Q That's fine; that's why we have to go through

21 the questions and sometimes I have to ask our court reporter

22 to read them back, because you know --

23 A Maybe you could just ask what you want to

24 know.

25 Q I'm asking what I want to know.


54/265



869

1 In the Hazardous Materials and Waste

2 Management Division, did any of these people review a

3 near-final draft of the EIA?

4 A The only people that would have done that

5 were possibly Phil Egidi, Warren Smith, and Marilyn Null and

6 myself.

7 Q So that's the first two categories: The

8 radiation program and the Hazardous Materials, Waste

9Management Division generally. Is that how your answer was

10 phrased?

11 A Yes.

12 Q The other persons use the same process that

13 Mr. Jarvis used; you excerpted, rather, writings they had

14 and included them into is EIA; is that correct?

15 A In general, yes.

16 Q Are there any exceptions?

17 A Yes, I don't think -- there's some of these

18 people that we did not get anything in writing from but we

19 had communications with.

20 Q But we're only within the first two

21 categories; it's really narrow.

22 A Okay. Then Scheppers and Peterson, I do not

23 believe we got text from them. But I believe we got input

24 from some other way.

25 Q In what other way would that be?


55/265


56/265



871

1 Q Thank you.

2 A But I do not know to what extent it was put

3 in directly versus extracted. I do know that some of the

4 submittals, for example, Patrick Reddy in the Air division,

5 was put in largely intact. But most of those people did not

6 write a section, but they provided written information that

7 was extracted in some way and put in the EIA.

8 Q When you say that, they provided written

9information that you had in your files?

10 A Yes.

11 Q But it wasn't provided for the specific

12 purpose of inclusion in the EIA; is that correct?

13 A Some of these people, the information they

14 provided was only used in the EIA.

15 Q Who are those persons?

16 A Well, Local Affairs. Let's see. National

17 Resources, Division of Wildlife.

18 Q No, I'm sorry, we want to stay with

19 individuals, please. If you want to skip a step of the

20 analysis, let's go with individuals.

21 A Okay. Would you repeat the question?

22 Q Please repeat the question.

23 (Whereupon the preceding four questions were

24 read back by the reporter.)

25 A Elizabeth Garner, Jim Garner, Lorenzo


57/265


58/265



873

1 written, did you provide a draft of the EIA to them --

2 A No.

3 Q -- for their review?

4 MR. GOAD: Your Honor, that's been asked and

5 answered.

6 THE COURT: It has.

7 Q (BY MR. STILLS) If I were to ask any of

8 these people that you identified whether or not -- scratch

9that. Never mind. Strike that.

10 How would I be able to find the text that was

11 provided by any of these people, starting with the Colorado

12 Attorney General's office and going down on this list? Did

13 you maintain a record -- I'm sorry, I paused there, my

14 apology.

15 Did you maintain a record of the documents

16 that were sent to you that you extracted information or that

17 you extracted text from?

18 A The documents that we received, the

19 information we received from these people was documented and

20 put in the file.

21 Q Can you describe that file in a way that I

22 can easily access it?

23 A It's probably in the section 3 notes.

24 MR. GOAD: Your Honor, this is -- I'm trying

25 to be very patient with the direction of this line of


59/265



874

1 questioning. Obviously we're conducting discovery here,

2 we've been at this for almost an hour, going over discovery

3 responses. This is an extraordinary in-hearing deposition,

4 as best as I can tell.

5 Part of the purpose of this hearing is to

6 receive comment on the EIA, and as evidenced by Mr. Stills'

7 last question: "Where can I find this information; is it in

8 that file," is obviously discovery. I suggest that we move

9on and get to the point of this hearing.

10 THE COURT: I'm going to allow the questions.

11 Objection is overruled.

12 MR. STILLS: Thank you.

13 Q (BY MR. STILLS) You lifted information

14 directly from Patrick Reddy's materials?

15 A Yes.

16 Q Do you recall which sections of his

17 materials?

18 A No.

19 Q Why was his information relevant to the

20 environmental impact analysis?

21 A There was a specific question raised

22 regarding dust deposition, and we asked the Air people to

23 address that question. And they gave us a memo in response.

24 Q And you -- do you have a copy of that memo in

25 that file?


60/265


61/265



876

1 to the environmental impact analysis based on their input?

2 A Yes.

3 Q Anybody else's input?

4 A Yes.

5 Q Whose?

6 A Well, we had several sets of information

7 presented by your clients, we had information raised by

8 other people; I contacted -- let's see, I'm trying to

9remember who else provided info on that set of issues. That

10 was probably it.

11 I'm trying to remember, seems like we had

12 some other members of the public provide information on, I

13 think, either sage grouse or habitat, but I can't remember.

14 Q And who on the EIA team was responsible for

15 incorporating that information in, was that you? Is that

16 your testimony?

17 A Yes.

18 Q Do you have experience as a wildlife

19 biologist?

20 A No.

21 Q Do you have any experience in wildlife

22 surveys?

23 A No.

24 Q You have no experience with wildlife?

25 A Absolutely have experience with wildlife,


62/265



877

1 yes.

2 Q Do you have any professional experience doing

3 analysis of wildlife impacts?

4 A Trying to remember. I worked on numerous

5 EISes, but I think it was more water quality than it was

6 wildlife specific, yes.

7 Q When you worked on that EIS, someone else

8 would handle the biological aspect?

9A I believe so, yes.

10 Q That's because you don't have training or

11 expertise in the area, but you were working on other things?

12 A I don't claim expertise in biology, no.

13 Q Thank you. And the same for Chris Landry and

14 Mark Williams, you testified that you didn't contact them

15 after lifting their information; is that correct?

16 A Yes, I did not contact them except to obtain

17 their resumes in response to your request.

18 Q But the dust deposition and air modeling they

19 did was relevant to the EIA; is that correct?

20 A I don't think either up with of them had done

21 dust modeling, at least they didn't present models to us.

22 Both had documents with information in it that we used.

23 Q What documents were those?

24 A I think Mark Williams was just a Power Point

25 presentation, which summa