AG-2022-000001

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This matter is before me pursuant to an appointment by the Executive Director of the Utah
Department of Environmental Quality (the “Executive Director”) dated November 14, 2019. The
appointment charges me to conduct a permit review adjudicative proceeding in this matter based
on the administrative record and not as a trial de novo, in accordance with Utah Code Ann. § 19-
1-301.5 and Utah Admin. Code R305-7. The administrative law judge must “conduct a review of
the director’s order or determination, based on the record” and submit a proposed dispositive
action to the Executive Director. Utah Code Ann. § 19-1-301.5(13)(b)-(c).
This matter concerns the Promontory Point Class I Landfill owned by Promontory Point
Resources, LLC (“PPR”) and located on the southern tip of the Promontory Point peninsula, Great
Salt Lake (“Promontory Point Landfill”). On October 25, 2017, PPR filed a request with the
Director of the Utah Division of the Waste Management and Radiation Control (the “Director”)
BEFORE THE EXECUTIVE DIRECTOR
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY
In the matter of:
Permit Modification for Modification of
Groundwater Monitoring Well System
Promontory Point Class I Landfill, Box
Elder County, Permit No. 0202R1
ALJ’S STATEMENT OF MATERIAL
FACTS, CONCLUSIONS OF LAW AND
RECOMMENDED ORDER ON THE
MERITS
February 12, 2021
Lucy B. Jenkins
Administrative Law Judge
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for modification of its landfill permit for the Promontory Point Landfill to relocate and install
three downgradient monitoring wells. On July 10, 2019, the Director issued a permit modification
to PPR approving monitoring wells MW-6, MW-7 and MW-8 (the downgradient wells) and MW-
9 (the upgradient monitoring well) (collectively, the “Monitoring Well System”) for the
Promontory Point Landfill (the “Permit Modification”). On August 6, 2019, Friends of Great Salt
Lake (“Friends”) filed a Petition for Review to appeal the Permit Modification. Friends seeks a
remand of the Permit Modification to require the Director to comply with and properly apply the
statute and rules to ensure protection of local groundwater and to preserve the Great Salt Lake
from contamination.
A hearing on the merits was held on November 10, 2020. At the hearing, Friends was
represented by its counsel, Rob Duboc; the Director was represented by its counsel, Raymond
Wixom; and PPR was represented by its counsel, Bradley Cahoon. Upon consideration of the
pleadings, administrative record, and the arguments of counsel, and pursuant to Utah Code Ann. §
19-1-301.5 (13), the ALJ submits the following Statement of Material Facts, Conclusions of Law
and Recommended Order to the Executive Director.
STATEMENT OF MATERIAL FACTS
Procedural Background
1.On October 25, 2017, PPR filed a request with the Director for modification of
PPR’s landfill permit for the Promontory Point Class I Landfill (“Permit Modification Request”)
covering the three downgradient wells and the upgradient well next to PPR’s relocated and
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constructed landfill cell. Doc. 77. (See Index of Administrative Record, for descriptions of the
documents in the administrative record).a
2.On July 10, 2019, the Director issued the Statement of Basis and Permit
Modification. Doc. 146.
3.On August 6, 2019, Friends filed a Petition to Intervene.
4.On August 8, 2019, Friends filed its Petition for Review.
5.On December 2, 2019, the Administrative Law Judge (“ALJ”) issued an Order on
the Petition to Intervene, provisionally granting intervention to Friends.
6.On February 12, 2020, the Director filed the administrative record (referred to
herein as “record” or “administrative record”).
7.On March 10, 2020, PPR filed its Motion to Dismiss Friends’ first claim and a
Motion for Summary Judgment of Friends’ remaining claims.
8.On March 12, 2020, the Division filed the Director’s Motion to Dismiss and
Motion for Declaratory Order on Applicable Law.
9.On April 13, 2020, Friends’ responded to the Director and PPR’s dispositive
motions. In its responses, Friends stated that its Petition did not constitute a collateral attack on
the underlying landfill permits and agreed to dismiss its fourth claim that the Director failed to
provide the public with the required opportunity to comment on the Loughlin Study.
10.On May 13, 2020, both the Director and PPR filed replies to Friends’ responses.
11.Oral arguments on the dispositive motions took place on June 4, 2020.
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12.On July 20, 2020, the ALJ issued a declaratory order declaring that the Utah Solid
and Hazardous Waste Act and corresponding rules (Utah Admin. Code R315-301-1, et seq.) are
the only statutes and rules applicable to this action.
13.On July 20, 2020, the ALJ issued a recommended order that dismissed Friends’
claims with and without prejudice. First, the recommended order dismissed with prejudice
Friends’ claims: (i) challenging the location of the landfill as inappropriate; (ii) challenging past
Director permit approvals pre-dating the permit modification at issue in this action, and
(iii) contending that the Director violated the law by not reopening public comment. Second, the
recommended order dismissed without prejudice Friends’ claim, to the extent it exists in its
petition, that PPR violated the law by installing the Monitoring Well System without prior
Director approval.
14.On August 10, 2020, the ALJ submitted to the Executive Director a
(Recommended) Stipulated Order of Dismissal, signed by the ALJ and the parties, dismissing the
following claims:
a.Friends’ claims (i) challenging the location of the landfill as
inappropriate; (ii) challenging past Director permit approvals pre-dating the permit
modification at issue in this action; (iii) that the Director violated the law by not
reopening public comment on the Loughlin Hydrogeologic Study, were dismissed
with prejudice; and
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b.Friends’ claim, to the extent it exists in its petition for review, that
PPR violated the law by installing the Monitoring Well System without Director
approval, was dismissed without prejudice.
15.On September 8, 2020, Friends filed its Opening Brief. On September 24, 2020,
the Director and PPR filed their response briefs. On October 9, 2020, Friends filed its replies to
the Director and PPR. On October 16, 2020, the Director and PPR filed their surreplies. Oral
arguments on the merits were held on November 10, 2020.
Location
16.The Promontory Point landfill is located on the west side of the southern tip of the
Promontory Point peninsula, Great Salt Lake, Box Elder County, Utah. Doc. 146, pp. 9361, 9376.
See Exhibit A.
17.The topography of the landfill and surrounding area is relatively flat. Doc. 93,
p. 5944.
Permitting Chronology
18.An application for the Promontory Point Landfill was first submitted on December
31, 2002. Doc. 001, p. 0001.
19.The Promontory Point Landfill was first permitted in March 2004. Doc. 023,
p. 1400. The permit was renewed in September 2011. Doc 056, p. 2112.
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20.Promontory Point Resources, LLC (PPR) became the owner of the Promontory
Point Landfill on, or about, July 7, 2015. Doc. 061, p. 2185. PPR became the permittee under the
Promontory Landfill Facility Permit on August 29, 2016. Doc. 068, p. 3529.
21.In 2016, PPR submitted a proposed permit modification to change the location and
design of what is now Cell 1A. Docs. 062, 063, 064. The Director approved that modification on
March 15, 2017. Doc. 75.
22.Because downgradient monitoring wells MW-1 through MW-3 did not meet the
requirements of Utah Administrative Code R315-308-2(2) for Cell 1A, PPR submitted a letter
request on October 25, 2017 to modify the Groundwater Monitoring System to replace the
monitoring wells to locations within 500 feet of Cell 1A. Doc. 077. A Google Earth map showing
the relocated Cell 1A and the three new downgradient monitoring wells was attached to the letter
request.
23.PPR constructed Cell 1A between June 29 and December 15, 2017. Doc. 87,
p. 4913.
24.PPR completed installation of its production Well, about 1.8 miles northeast of
Cell 1A, on September 1, 2017. Doc. 093, p. 5926.
25.The Director issued a draft permit on the Permit Modification Request on
December 12, 2017, Doc. 78.
26.The Director held a public comment period on the Permit Modification Request
from January 13, 2018 through February 14, 2018. Doc. 079.
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27.Friends and other environmental groups, industry, and state and federal
government agencies submitted comments raising concerns about the groundwater monitoring
system and its inadequacy in preventing landfill contamination from reaching the Great Salt Lake
through the fractured subsurface contamination pathways present at the landfill. Docs. 80, 81, 82,
83 and 92, pp. 5839-5844.
28.Friends submitted comments dated February 14, 2018 to the Division of Waste
Management and Radiation Control (the “Division”). Document 92, pp. 5839-5858.
29.PPR installed four new monitoring wells (three downgradient wells (MW-6
through MW-8) and one upgradient well (MW-9)) between October 7 and October 15, 2018.
Doc. 093, p. 5906. See Exhibits B and C for the well location.
30.On December 18, 2018, the Director invited PPR to submit reply comments to the
public comments made during the public comment period. Doc. 092, p. 5827.
31.On December 20, 2018, PPR submitted the Hydrogeologic Study of Promontory
Point Resources LLC Phase I Landfill Cell for Class I Landfill Permit Modification dated
December 2018, prepared by Loughlin Water Associates (the “Loughlin Study”)to the Division.
Doc 093, p. 5900.
32.PPR submitted its reply to the public comments on January 15, 2019. Doc. 095,
see, e.g., p. 6191.
33.On April 5, 2019, the Director asked PPR several questions about the Loughlin
Study, made comments, and requested additional information. Doc. 100, p. 6524.
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34.On April 24, 2019, PPR responded to the Director’s April 5, 2019 questions,
comments, and requests. Doc. 101.
35.On May 14, 2019, Allan Moore, Solid Waste Program Manager, on behalf of the
Director, wrote additional comments to PPR on the Loughlin Study. Doc. 102, p. 6632.
36.On May 29, 2019, the Director invited those members of the public who had made
comments during the public comment period to submit surreply comments to PPR’s reply
comments. See Docs. 104–117.
37.Friends submitted its sur-reply comments to PPR’s reply comments on June 19,
2019. Doc. 121. In its sur-reply, Friends submitted a review of the Loughlin Study conducted by
Dr. Robert Baskin. Doc. 121, pp. 8168-76; see also Docs. 130 and 131. Dr. Baskin raised
concerns about the sufficiency of the Loughlin Study and the monitoring wells, faulting, fractured
bedrock, and groundwater flow, velocity and discharge, Friends’ sur-reply also references a letter
dated March 3, 2018 from Dr. Gregory T. Carling to Western Resource Advocates, which raised
concerns about the landfill site and groundwater monitoring plan. Doc. 128, pp. 8130-33.
38.The Director approved PPR’s Permit Modification Request on July 10, 2019. Doc.
146, p. 9359.
39.Friends filed its Petition for Review of the Director’s approval on August 6, 2019.
Geotechnical, Geologic and Hydrogeological Studies
40.Applied Geotechnical Engineering Consultants, Inc. (“AGEC”) issued a
Geotechnical and Geologic Study on July 21, 2003 in support of the landfill’s first Class I permit
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(the “AGEC Study”). The AGEC Study reported on the results from 36 test pits and five
monitoring wells (MW-1 through MW-5) and stated that “[d]ue to the age of the bedrock, the
bedrock is highly faulted, fractured and deformed.” Docs. 008, p. 0485; 076, pp. 4261, 4276.
41.AGEC excavated 36 test pits in December 2002 and reported finding bedrock in 15
of its test pits. Docs. 005, p. 0374, 008, pp. 0488, 0492, 0519–0523; 010, p. 0822; 076, pp. 4264,
4267, 4350–4354.
42.Test Pits TP-A-1, TP-A-4, and TP-21 appear to be in the vicinity of what is now
Cell 1A. Docs. 008, p. 0399; 076, p. 3780; 093, p. 5935. AGEC reported reaching bedrock at
about 5 feet deep in TP-A-1. AGEC did not reach bedrock in TP-A-4 by the pit’s maximum depth
of about 18 feet. AGEC reported bedrock at about 5 feet in TP-21. Doc. 008, pp. 0519, 0522.
43.In 2003, AGEC installed five groundwater monitoring wells, MW-1 through MW-
5. Doc. 010, p. 0822. AGEC reported sand and gravel in Monitor Well MW-1, and bedrock
below 43 feet below ground surface to about 61 ½ feet, the maximum depth of MW-1. However,
AGEC also said it did not discover bedrock in Monitoring Well MW-1. Doc. 008, pp. 0398,
0492, 0511–0518; 076, pp. 4287–4299. AGEC found sand, gravel, and clay in Monitor Well
MW-5, and bedrock below approximately 41 feet below ground surface to the maximum depth of
MW-5, approximately 243 feet. AGEC found sand, gravel, and clay in Monitor Wells MW-2
through MW-4, with no bedrock reported in those wells. Docs. 008, pp. 0488, 0512–0518; 076,
pp. 4264, 4268.
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44.In 2015, PPR retained Tetra Tech to conduct an additional study of the geology of
the site. Tetra Tech reported the study results in a Geotechnical Data Summary and Preliminary
Geological Map dated October 6, 2015 (the “Tetra Tech Study”).. Tetra Tech excavated 10 test
pits, PT-01 through PT-10. It also had GeoVision conduct six seismic refraction survey lines, SL-
1 through SL-6. Doc. 076, pp. 4324, 4325. Tetra Tech reported encountering quartzite in the
bottom of PT-04 and PT-05, both of which are north of Cell 1A. Id., pp. 4330, 4340, 4342. Plate
A-1 of the Tetra Tech Study provides an illustration of how the various geologic formations relate
to each other at the landfill site. Id., p. 4340. Cross-Section A-A’ on Plate A-1 shows that the
landfill site contains an uneven top layer of alluvial fill above three layers of bedrock: the
Geertsen Canyon, Browns Hole, and Mutual formations, in that order. Id. The Tetra Tech Study
describes the Geertsen Canyon bedrock formation as “highly- to intensely-fractured/jointed and is
cut by a series of northwest-trending high-angle faults,” id., p. 4329, the Browns Hole bedrock
formation as “highly- to intensely-fractured/jointed,” id., p.4330, and the Mutual bedrock
formation as “highly- to intensely-fractured/jointed.” Id.; see also p. 4331.
45.As part of the Tetra Tech Study, Tetra Tech contracted with GeoVision, the
company that performed the seismic refraction survey at the site. Doc. 76, pp. 4371-98.
GeoVision reported finding “weathered bedrock” beneath all six seismic refraction lines at a range
of depths, with some as close as 7’ below the surface. Id., pp. 4378-81. Each refraction line was
705’ in length. Id., p. 4373. One line, SL-4, intercepted bedrock at a depth of 45’ on one end of
the line and 130’ on the other. Id., p. 4380.
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46.Tetra Tech submitted a Geotechnical Engineering Report to PPR (the “Tetra Tech
Report”) on September 30, 2016 of a field and laboratory investigation done in July 2016. Tetra
Tech performed seven exploratory borings and excavated 13 additional test pits. Doc. 076,
pp. 4429, 4432, 4433, 4473. The Tetra Tech Report depicts boring B-100 as containing
“intensely fractured” bedrock beginning at 8’ below the surface, id., p. 4480, B-101 and B-101P
as containing bedrock at approximately 17’ below the surface, id., p. 4481-82, and B-102 as
having at least 25 feet of “intensely fractured, highly weathered” bedrock beginning at 17’ below
the surface. Id., pp. 4483-84.
47.In 2017 and 2018, Loughlin completed a production well to supply water for
landfill operations, installed four new monitoring wells into the uppermost aquifer below the
relocated landfill cell, and conducted groundwater level monitoring and contouring, hydraulic
testing, and groundwater testing on the production well and all of nine monitoring wells. Doc. 93,
pp. 5901, 5905.
48.On December 20, 2018, PPR submitted the Loughlin Study to the Division. Doc.
093, p. 5900. The Loughlin Study was submitted in support of the construction of one upgradient
monitoring well (MW-9) and three downgradient monitoring wells (MW-6 through MW-8) that
were constructed by PPR from October 7-15, 2018. Doc. 93, p. 5905.
49. The Loughlin Study included a review of the AGEC Study, the Tetra Tech Study,
and the Tetra Tech Report.
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50.As part of its study, Loughlin performed groundwater level monitoring, contouring,
and well hydraulic testing and provided hydrogeologic analysis of subsurface water activity. Doc.
93, pp. 5906, 5913, 5918-19, 5932. AGEC and Tetra Tech did not perform groundwater level
monitoring, contouring, or well hydraulic testing and provided no hydrogeologic analysis of
subsurface water activity. (Id., pp. 4261-4322, 4324-4426, 4428-4531.)
51.Loughlin took approximately 461 feet of core samples from its well coreholes.
(Id., pp. 5957-58, 5964-76.) Core samples allow for direct observation of subsurface geology.
AGEC took no core samples. Doc. 76, pp. 4261-4322. Tetra Tech sampled only 2.5 feet of what
it believed was “bedrock”, less than 1 percent of Loughlin’s sampled geology, and none of the
Tetra Tech samples were from near the landfill (the landfill was relocated after Tetra Tech
sampled) (Id., pp. 4428, 4473.) Tetra Tech did not drill deeper than 31.5 feet. (Id., pp. 4478-91.)
52.AGEC used a California split barrel sampler using a 140-pound hammer. Doc.
101, p. 6526. Tetra Tech used a small CME-55 truck-mounted hollow stem auger and SPT and
California sampler. (Id.) Loughlin concluded that the AGEC and Tetra Tech drill rigs could not
drill through bedrock. (Id.) Tetra Tech and AGEC encountered boulders in the fanglomerate
formation, which resulted in auger refusal. (Id.) Tetra Tech also used a small backhoe. Doc. 76,
p. 4415.
53.Loughlin used sonic methods to extract continuous relatively undisturbed core drill
samples from greater depths than AGEC and Tetra Tech (except that AGEC drilled MW-5 to 243
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feet with air-rotary into quartzite, but took no core samples). Docs. 101, pp. 6526, 6538-6539; 93,
pp. 5905, 5957-58.
54.Loughlin determined that all of the new monitoring well borings intercepted the
same unfractured sedimentary fanglomerate formation, not “highly- to intensely-fractured/jointed
quartzite” bedrock. Docs. 93, pp. 5909, 5986-6006; 101, pp. 6526-6527, 6531.
55.Because the fanglomerate formation contains abundant clasts, cobbles and boulders
of quartzite, Loughlin determined Tetra Tech and AGEC encountered boulders in the
fanglomerate formation, which resulted in auger refusal. Doc. 101, p. 6526.
56.Loughlin determined that the GeoVision seismic refraction survey included in
Tetra Tech’s report confirmed that in the area of the landfill, AGEC did not reach bedrock. Doc.
93, 5909.
57.Loughlin performed a three-day constant-rate 21-gallon per minute pumping test of
the production well and slug tested the nine (9) monitoring wells. (Id.) The pilot hole for the
onsite PPR production well identified bedrock at a depth of approximately 168 feet. Doc. 101, p.
6527.
58.Loughlin determined that the three-day production well pumping test had no effect
on water levels in shallow wells MW-5 (quartzite bedrock well) and MW-1, and no drawdown
was noted during the monitoring. Docs. 95, pp. 6243-45; 101, p. 6553.
59.From an analysis of the data derived from the hydraulic testing, Loughlin made the
following findings and conclusions concerning the production well and bedrock aquifer:
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•regarding the production well: “Despite being screened over a 585-foot interval, the
well has (1) a yield of 21 gpm with 309 feet of drawdown after 72 hours; (2) a specific
capacity of 0.07 gallons per minute per foot and (3) a hydraulic conductivity of 0.03
feet per day.” (Id., p. 6532.) “These results indicate that:
(1) the quartzite bedrock penetrated by the PPR Production Well is relatively
unfractured, and that the fractures that are present have been filled by gypsum and
clay, (2) this formation is of extremely low permeability, and (3) the gradient from the
bedrock is upward because the aquifer is under confined conditions.” (Id.);
•ground water is in a deep confined aquifer at a depth of greater than 730 feet (Id.,
p. 6527);
•subsurface bedrock has very low permeability (0.03 to 4 ft/day). Doc. 93, p. 5919,
5922 and particle velocity (0.01 to 9 ft/day) (Id., pp. 5920, 5922);
•hydraulic conductivity of the bedrock (0.03 to 4 ft/day) (Id., p. 5919, 5922) is very low
compared to the hydraulic conductivity of the fanglomerate (1 to 7 ft/day) (this is listed
as semi-consolidated deposits around MW-6 through MW-9) (Id.);
•fracturing in bedrock does not provide increased hydraulic conductivity or conduits for
groundwater movement in the production well because the fractures are filled (Id., p.
5919); Doc. 101, p. 6532; and
•The water level earth tide response observed in Well MW-5 further demonstrates the
relatively low porosity and permeability of the bedrock. Doc. 93, p. 5919.
60.From its analysis of the core samples and hydraulic testing on all ten wells,
Loughlin made the following findings and conclusions regarding the fanglomerate formation
under the landfill:
•the formation under the landfill is an unfractured fanglomerate formation. Doc. 101, p.
6531;
•the top of bedrock beneath the landfill is at a depth of greater than 149 feet. Doc. 93,
p. 5908;
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•monitoring wells MW-1 and MW-5 were not affected by the pumping of the
production well. Doc. 101, p. 6553;
•The fanglomerate formation has low permeability with hydraulic conductivity that
ranges from 1 to 7 feet per day and low particle velocities in the fanglomerate aquifer
that range from 3 to 20 feet per year. Docs. 93, pp. 5919-20, 5932; 101, p. 6535;
•the upper aquifer beneath the landfill is impeded by a groundwater mound that forms
from seepage from the brine canal and restricts groundwater flow to the south from
upland areas to the Great Salt Lake. Doc. 93, pp. 5914, 5920.
61.The Loughlin Study concluded that the Monitoring well System satisfies the
requirements of Utah Administrative Code R315-308-2. Doc. 93, pp. 5905, 5907; there is no
hydraulic connection between the uppermost aquifer and potential lower aquifers beneath the
landfill. Docs. 95, pp. 6247-49; 101, p. 6527; and hydraulic testing of all wells showed low
permeability in the fanglomerate formation below the landfill and lower permeability in the
confined bedrock aquifer Doc. 93, pp. 5918-22.
EXHIBITS
For reference, the following Exhibits are attached:
Exhibit A – Figure 1, Regional Location Map of the Phase I Landfill Cell, Loughlin Study. Doc.
93, p. 5934.
Exhibit B – Figure 2, Topographic Map, Promontory Point Landfill and Well Locations,
Loughlin Study. Doc. 93, p. 5935.
Exhibit C – Figure A-3, Location of Monitoring Wells MW-6, MW-7, MW-8 and MW-9,
Loughlin Study. Doc. 93, p. 5984.
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ISSUES BEFORE THE ALJ
Friends’ presents three arguments in its Opening Brief:
1.It was clearly erroneous for the Director to violate the law by approving the permit
modification without the information the division stated it needed to determine the efficacy of
PPR’s groundwater monitoring system and without an adequate explanation for his decision to
waive that requirement.
2.It was clearly erroneous for the Director to approve the permit modification
without requiring PPR to properly characterize the hydrogeology beneath the landfill site –
information that is necessary for the director to determine whether PPR’s groundwater monitoring
system is sufficiently protective – in the face of record evidence that highly-fractured, largely
uncemented bedrock is hydraulically connected to the shallow aquifer.
3.Because the record evidence shows that highly- to intensely-fractured bedrock is
present beneath the landfill site, and because contamination from the landfill could reach Great
Salt Lake in a matter of days and remain undetected for weeks or months, it was clearly erroneous
for the director not to require a more aggressive sampling schedule.
Friends seeks a remand of the Director’s Permit Modification to require the Director to
comply with and properly apply the statute and rules to ensure protection of local groundwater
and the Great Salt Lake from contamination.
STANDARD OF REVIEW
Utah Code § 19-1-301.5 sets forth the following standards for review:
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On review of a proposed dispositive action, the executive director shall
uphold all factual, technical, and scientific agency determinations that are
not clearly erroneous based on the petitioner’s marshaling of the evidence.”
Utah Code § 19-1-301.5(14)(b)1.
During judicial review of a dispositive action, the appellate court shall:
(i) Review all agency determinations in accordance with
Subsection 63G-4-403(4), recognizing that the agency has been granted
substantial discretion to interpret its governing statutes and rules; and
(ii) Uphold all factual, technical, and scientific agency
determinations that are not clearly erroneous based upon the petitioner’s
marshalling of the evidence.
Utah Code Ann. § 19-1-301.5(16)(c) (emphasis added).
Utah Administrative Code Rule R305-7-214 explains these standards of review as follows:
(2) The standard of review for the Director’s factual, technical, and
scientific determinations specified in Section 19-1-301.5(14)(b) and
(15)(c)(ii)2 is explained as follows:
(a) The petitioner has the burden of proof;
(b) Marshaling the evidence is a natural extension of the
petitioner’s burden of proof;
(c) For each factual, technical, and scientific determination
challenged by petitioner, the petitioner is required to marshal and
acknowledge the evidence in the record that supports the Director’s
1 While subsection (13)(b) expressly applies directly to the Executive Director’s review, the standard of review that
the ALJ is to apply to the record is not expressly stated in the Utah Code. Under a fair reading of the statute, it is
clear that the ALJ is to apply the same standard as the Executive Director is required to apply. This conclusion is
based on a reading of the permit review adjudicative proceeding statute as a whole. In the first instance, the ALJ’s
express duty and authority is to undertake a permit review adjudicatory proceeding and not a trial de novo on the
merits, resulting in a recommended ruling for the Executive Director. In other words, the role of the ALJ is to “stand
in the shoes” of the Executive Director and provide him with a recommended ruling on the merits. Thus, the ALJ is
to apply the same standard of review to the administrative record as the Executive Director is required to apply. Utah
Code Ann. § 19-1-301.5.
2 The reference should be Utah Code Ann. § 19-1-301.5(16)(c)(i).
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determination. Such determination shall be overturned as clearly erroneous
only if the petitioner has proven, after marshaling, that the Director’s
determination is not supported. See Subsections 19-1-301.5(6)(d)(v)(G)
and (H) and 19-1-301.5(14); and
(d) If the petitioner fails to marshal, there is a presumption that
the Director’s factual, technical, and scientific determination is not clearly
erroneous.”
(3) The standard for review for non-factual determinations provided
in Section 19-1-301.5(15)(c)(i) recognizes that the Director has been
granted substantial discretion to interpret the division’s governing statutes
and rules.
A. The Standard of Review for the Director’s Factual Determinations in This
Special Adjudicative Proceeding is the Clearly Erroneous Standard and the
Substantial Evidence Standard of Subsection 63G-4-403(4)(g) Does Not
Apply to This Proceeding.
Friends asserts that the standard of review that the ALJ should apply to the Director’s
determinations of fact is whether they are supported by substantial evidence, citing to Utah Code
§ 63G-4-403(4), which incorporates the substantial evidence standard for agency determinations
of fact:
(4) The appellate court shall grant relief only if, on the basis of the
agency’s record, it determines that a person seeking judicial review has
been substantially prejudiced by any of the following:
…(g) the agency action is based upon a determination of fact,
made or implied by the agency that is not supported by substantial evidence
when viewed in light of the whole record before the court; … (emphasis
added.)
Utah Code Ann. § 63G-4-403(4).
The ALJ concludes that the standard of review for the Director’s factual determinations in
this special adjudicative proceeding is the clearly erroneous standard, as prescribed in Utah Code
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§ 19-1-301.5(14)(b) and that the substantial evidence standard of Subsection 63G-4-403(4)(g)
does not apply to special adjudicative proceedings under Utah Code § 19-1-301.5. The rationale
for this conclusion is as follows.
In reviewing the ALJ’s recommended order, the Executive Director gives deference to the
Director’s factual decisions. See Utah Code Ann. § 19-1-301.5(14)(b); see also id., § 19-1-
301.5(16)(c)(i). The appellate court in turn gives deference to the Executive Director’s factual
determinations in his review of the Director’s Administrative Record. See Id. § 19-1-
301.5(16)(c)(ii).
Prior to 2015, the standard of review the Executive Director was to apply to the Director’s
factual, technical and scientific determinations was whether those determinations were “supported
by substantial evidence taken from the record as a whole.” (Emphasis added). Id. Ann. § 19-1-
301.5(13)(b) (2014). An appellate court was to “uphold all factual, technical, and scientific
agency determinations that are supported by substantial evidence viewed in light of the record as a
whole.” Id. Ann. § 19-1-301.5(14)(c)(ii) (emphasis added).
In 2015, the Legislature amended Section 19-1-301.5.Subsection (13)(b) became
Subsection (14)(b) and was changed to read, “[o]n review of a proposed dispositive action, the
executive director shall uphold all factual, technical, and scientific agency determinations that are
not clearly erroneous based on the petitioner’s marshaling of the evidence.” Utah Code Ann.
§ 19-1-301.5 (14)(b); Laws 2015 §2 (emphasis added). Subsection (14)(c)(ii) became Subsection
(16)(c)(ii) and was changed to instruct the appellate court to “uphold all factual, technical and
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scientific agency [Executive Director] determinations that are not clearly erroneous based on the
petitioner’s marshaling of the evidence.” Id. (emphasis added.). Subsections (14)(b) and 16(c)(ii)
read the same today as after the 2015 amendment.
Subsection 19-1-301.5(3) states that except as expressly provided in Section 19-1-301.5,
the provisions of Title 63G, Chapter 4, the Utah Administrative Procedures Act (the “UAPA”) do
not apply to special adjudicative proceedings under Section 19-1-301.5. Subsection (14)(b)
directs the Executive Director, in special adjudicative proceedings, to uphold the Director’s
factual determinations that are not clearly erroneous. Since Section 19-1-301.5 does not expressly
provide that the UAPA applies to special adjudicative proceedings, I conclude that only the
clearly erroneous standard applies to the agency’s factual determinations in this special
adjudicative proceeding.
Subsection 16(c) directs the appellate court to uphold all factual agency determination that
are not clearly erroneous and to review agency determinations in accordance with Subsection
63G-4-403(4) of the UAPA, recognizing that the agency has been granted substantial discretion to
interpret its governing statutes and rule. Subsection 63G-4-403(4) sets out an exclusive list of
eight circumstances under which the appellate court is authorized to grant relief to a petitioner.
One of those circumstances, Subsection (4)(g), is when an agency action is based on a
determination of fact that is not supported by substantial evidence. However, subsection 16(c)
only applies to appellate proceedings, not special adjudicative proceedings.
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A finding of fact is clearly erroneous if it is “not adequately supported by the record,
resolving all disputes in the evidence in a light more favorable to the trial court’s determination.”
Save Our Sch. v. Bd. of Educ. of Salt Lake City, 2005 UT 55, ¶ 9, 122 P.3d 611. A finding is
clearly erroneous if that “finding is without adequate evidentiary support or was induced by an
erroneous view of the law.” R.B. v. L.B., 2014 UT App 270, ¶ 26, 339 P.3d 137 (citing Hale v.
Big H. Constr., Inc., 2012 UT App 283, ¶ 9, 288 P.3d 1046).
B. The Standard of Review for Non-Factual Determinations Recognizes That the
Director Has Been Granted Substantial Discretion to Interpret the Division’s
Governing Statutes and Rules.
With respect to questions of law, the administrative law judge should grant “substantial
discretion” to the agency in its interpretation of its governing statutes and rules. See Utah Code
Ann. § 19-1-301.5(16)(c)(i); Utah Admin. Code R305-7-214(3). In this case, the governing
statutes and rules include the Solid and Hazardous Waste Act and the implementing regulations.
The Director’s legal interpretation of these statutes and rules may be overturned only if Petitioner
shows that such interpretation is a “clearly erroneous interpretation or application of the law.”
See, e.g., Sierra Club v. Bd. of Oil, Gas, & Mining, 2012 UT 73, ¶ 10, 289 P.3d 558 (citing Assoc.
Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 18, 38 P.3d 291 (an agency’s
“interpretation of the operative provisions of the statutory law it is empowered to administer”
must be given deference); see also Utah Physicians for a Healthy Env’t v. Utah Dept. of Envtl.
Quality, 2016 UT 49, ¶ 12, 391 P. 3d 148(recognizing the agency’s substantial discretion standard
of review).
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CONCLUSIONS OF LAW
I.FRIENDS FAILED TO PRESERVE ITS ARGUMENT THAT THE
FANGLOMERATE IS THE GEERTSEN CANYON FORMATION.
Friends raises the following claim in its Opening Brief, (referred to as “the Geertsen
Claim”):
(1) the Geertsen Canyon Quartzite bedrock formation is the same as
what PPR has described as the fanglomerate layer;
(2) directly below the fanglomerate/Geertsen Canyon Quartzite bedrock
formation containing the shallow aquifer at the landfill site lies the highly-
fractured, largely uncemented Browns Hole Formation;
(3) there must be a hydraulic connection between the Browns Hole
Formation and the fanglomerate/Geertsen Canyon Quartzite bedrock
formation containing the shallow aquifer directly above it;
(4) because of the hydraulic connection between the two formations,
the Browns Hole Formation must be considered to be part of the uppermost
aquifer and the Director must require PPR to monitor that formation as well
as, possibly, the Mutual Formation that lies directly below the Browns Hole
Formation; and
(5) because PPR’s current monitoring wells do not monitor the Browns
Hole Formation, the Director should have found that PPR’s monitoring
system is deficient.
Opening Brief, pp. 27-29.
The Director states that Friends failed to preserve the Geertsen Claim and that it should be
dismissed with prejudice. The Director argues that Friends did not raise the Geertsen Claim in its
Petition for Review and that matters not addressed in the petition for review may not be raised in
the opening brief. The Director also argues that Friends failed to satisfy its burden of
demonstrating that an issue it raised in its Petition for Review was preserved in accordance with
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Utah Code § 19-1-301.5(4) by showing that it raised the issue during public comment with
citation to specific supporting information. See Utah Code Ann. § 19-1-301.5(11)(a).
Utah Code Section 19-1-301.5(4) provides that that where a public comment period is
available a person challenging an order in a special adjudicative proceeding must have raised that
issue or argument during the public comment period:
If a public comment period was provided during the permit application
process or the financial assurance determination process, a person who
challenges an order or determination may only raise an issue or argument
during the special adjudicative proceeding that:
(a) The person raised during the public comment period; and
(b) Was supported with information or documentation that is
cited with reasonable specificity and sufficiently enables the director to
fully consider the substance and significance or the issue.
Furthermore, Utah Code § 19-1-301.5(6)(d)(D) and Utah Administrative Code R305-7-203(3)
require a permit for review to include an explanation of how each argument was preserved.
Utah Code Section 19-1-301.5(6)(e) provides:
A person may not raise an issue or argument in a petition for review unless
the issue or argument:
(i) was preserved in accordance with Subsection (4); or
(ii) was not reasonably ascertainable before or during the public
comment period.
Utah Code Section 19-1-301.5(6)(f) provides:
To demonstrate that an issue or argument was preserved in accordance with
Subsection (4), a petitioner shall include the following in the petitioner’s
petition for review:
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(i) a citation to where the petitioner raised the issue or argument
during the public comment period; and
(ii) for each document upon which the petitioner relies in
support of an issue or argument, a description that:
(A) states why the document is part of the administrative
record; and
(B) demonstrates that the petitioner cited the document
reasonable specificity in accordance with Subsection (4)(b).
Finally, Utah Administrative Code R305-7-213(1)(f) states that matters not addressed in the
petition for review may not be raised in the opening brief.
A. Friends is Justified in Asserting that the Geertsen Claim Could Not Have
Been Reasonably Ascertainable to Friends Until After the Public Comment
Period.
The Director argues that Friends did not satisfy the requirements of Utah Code Section 19-
1-301.5(6)(f) which requires a citation in the petition for review to where the petitioner raised the
issue or argument during the public comment period and a description of supporting documents in
the administrative record.
Friends replies that the prohibition against raising an issue in this proceeding that was not
raised during the public comment period does not apply to issues that were “not reasonably
ascertainable before or during the public comment period” and that the public comment period is
only the period of January 13, 2018 through February 14, 2018. Friends’ Reply to the Director’s
Response to Friends’ Opening Brief, pp. 3-7. Specifically, Friends’ reply is based on the
following:
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1.The public comment period ran from January 13, 2018 through February 14, 2018
(“Public Comment Period”). Document 94.
2.The information available to the public during the Public Comment Period was a
letter dated October 25, 2017 from PPR to the Director requesting a permit modification.
Document 77.
3.On February 14, 2018, Friends submitted comments on PPR’s Permit Modification
Request. Document 92, pp. 5839-5844.
4.On December 20, 2018, PPR submitted the Loughlin Study3 to the Division.
Document 93.
5.On January 17, 2019, PPR responded to Friends’ comments. Document 95.
6.On May 29, 2019, the Director invited Friends, through its co-commentor Sierra
Club, (and other persons who submitted public comments), to submit sur-reply comments on
PPR’s reply. Document 115, pp. 7769-70.
7.On June 19, 2019, Friends submitted its sur-reply to the Director. Documents 121-
133.
The Director replies that he extended the opportunity for additional public comment to
those members of the public who had made comments during the initial comment period by
inviting them to submit surreply comment on PPR’s reply comments. The Director argues that
3 Loughlin Water Associates, LLC, Hydrogeologic Study of Promontory Point Resources LLC Phase I Landfill Cell
for Class I Landfill Permit Modification (December 2018). Doc. 093.
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the public comment period includes the surreply comments and that because Friends did not raise
the Geertsen Claim in its sur-reply comments, it has not preserved this issue.
Friends’ surreply states that “Friends reserves the right to raise issues connected with the
Study in any future challenge to the permitting action, since it was not available when Friends
submitted its original comments.” The statute does not allow for a general reservation of claims
for a future permitting challenge. See Utah Code Ann. § 19-1-301.5(6)(e). However, Friends’
sur-reply was submitted after the public comment period of January 13, 2018 through
February 14, 2018 (“Public Comment Period”), which Friends asserts is the pertinent public
comment period. The following supports Friends’ position:
1.The Utah Waste Management Regulations provide that a draft permit, permit
renewal or major modification of a permit is subject to a thirty (30) day public comment period.
Utah Admin. Code R315-311-2.
2.The Division published its Notice of Public Comment on January 12, 2018 in
several newspapers, which stated: “The public comment period to receive comments on this
request will commence on January 13, 2018 and end on February 14, 2018.” Doc. 94.
3.Utah Administrative Code R305-7-202, Notice and Comment and Exhaustion of
Remedies, states that: “[i]n preparing a comment response document, the Director may request
that the permit applicant provide information in response to comments received during the public
comment period.” Utah Admin. Code R305-7-202(4). The regulation does not state that the
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public comment period includes the period during which the applicant responds to comments or
any surreplies.
4.Utah Administrative Code R305-7-209, Administrative Record, states that the
administrative record shall include the notice and record of each public comment period. The
Administrative Record does not include a notice of public comment for any public comment
period other than the Notice of Public Comment published on January 12, 2018. Doc. 94.
5.The Division’s Statement of Basis for PPR’s major permit modification issued on
July 10, 2019 says that: “[t]his Statement of Basis includes the Director’s response to the public
comments received during the public comment period held between January 13 and February 14,
2018 and in addition, the reply comments received from Promontory on January 15, 2019 and the
sur-reply comments received from public commenters submitted by June 20, 2019 at the request
of the Director.” Doc. 146, p. 1.
Although the Director has substantial discretion to interpret its statutes and regulations, it
is not justified in an interpretation that is inconsistent with a plain reading of the statutes and
regulations and statements in the Statement of Basis for the PPR permit modification. The Utah
Waste Management Regulations set forth the procedures for public comment. The Division
followed these procedures for the Public Comment Period, but did not follow them for requesting
sur-replies.
Based on the interpretation of the public comment period as the period between January 13
and February 14, 2018, Friends is justified in asserting that the Geertsen Claim could not have
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been reasonably ascertainable to Friends until after the Public Comment Period. See Utah Code
Ann. Section 19-1-301.5(6)(e)(ii).
B.Friends Failed to Raise the Geertsen Claim in its Petition For Review.
Notwithstanding that Friends is justified in asserting that the Geertsen Claim could not
have been reasonably ascertainable to Friends until after the Public Comment Period, Friends
failed to raise the Geertsen Claim in its Petition For Review. In order to preserve the Geertsen
Claim, Friends had to first raise it in its Petition For Review and cannot first raise the issue in its
Opening Brief. See Admin. Code R305-7-213(1)(f). Therefore, the ALJ recommends to the
Executive Director that Friends’ Geertsen Claim is dismissed, with prejudice.
C.The ALJ Does Not Address the Director’s Judicial Notice Request.
In order to address the possibility that the Executive Director does not dismiss Friends’
Geertsen Claim, the Director requests that the ALJ take judicial notice of that the United States
Geological Survey has stated that the major lithologic constituent of Geertsen Canyon Quartzite in
Box Elder County in Box Elder County (where the Promontory Landfill is located) is arenite, a
strongly cemented sedimentary quartzite. Director’s Brief in Response to Friends’ Opening Brief,
pp. 13-15. Because the ALJ recommends dismissal of Friends’ Geertsen Claim, the ALJ does not
address the Director’s judicial notice request.
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II.THE DIRECTOR DID NOT ERR IN DETERMINING THAT THE MONITORING
WELL SYSTEM COMPLIES WITH THE RULE AND THAT PPR WAS NOT
REQUIRED TO CONDUCT MODELING
Friends claims that the Director clearly erred, and violated the law, because he ignored his
staff’s recommendations to require PPR to conduct modeling to demonstrate the efficacy of the
proposed groundwater monitoring system and without an adequate explanation for his decision to
waive that requirement. Opening Brief, pp. 3–7.
The Director is in charge of the Division of Waste Management and Radiation Control and
the Division staff works for, advises and reports to the Director. Utah Code §§ 19-1-105, 19-6-
107(3)((b). The Director, not his staff, is granted “substantial discretion to interpret [the]
governing statutes and rules” he is charged to enforce. Utah Code Ann. § 19-1-301.5(16)(c); Utah
Admin. Code R305-7-214(3).
The rule pertinent to PPR’s Permit Modification Request is the Ground Water Monitoring
Requirements Rule, Utah Admin. Code R315-308-2. Subsection (2) contains the requirements for
upgradient and downgradient wells:
(2) The ground water monitoring system must consist of at least one
background or upgradient well and two downgradient wells, installed at
appropriate locations and depths to yield ground water samples from the
uppermost aquifer and all hydraulically connected aquifers below the facility, cell,
or unit. The downgradient wells shall be designated as the point of compliance
and must be installed at the closest practicable distance hydraulically down
gradient from the unit boundary not to exceed 150 meters (500 feet) and must also
be on the property of the owner or operator:
(a) the upgradient well must represent the quality of background water that
has not been affected by leakage from the active area; and
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(b) the downgradient wells must represent the quality of ground water
passing the point of compliance. Additional wells may be required by the Director
in complicated hydrogeological settings or to define the extent of contamination
detected.
The Director has the substantial discretion to interpret this regulation, to decide what
information is required to satisfy the regulation and to make the decision that the requirements of
the Rule have been satisfied. The record supports the Director’s decision that PPR’s Permit
Modification Request satisfied the Rule requirements and that modeling was not required, as
follows:
Following receipt of the Loughlin Study, the Director submitted comments and questions
to PPR on the proposed groundwater monitoring wells and modeling and PPR, via Loughlin,
responded:
a. By letter dated April 5, 2019, the Director asked PPR to demonstrate that
three downgradient wells would adequately detect a release at least 95% of the time. Doc.
100, p. 6524, Comment 19.
b. By letter dated April 24, 2019, Loughlin responded to the Director’s
Comment 19, that the spacing of three downgradient wells is adequate based on the low
groundwater velocity in the fanglomerate aquifer beneath the landfill cell, that the Rule
does not require modeling or a 95 percent detection rate and that the three wells satisfy the
requirements of EPA groundwater monitoring criteria set forth in EPA rules and technical
enforcement guidance. Doc. 101, pp. 6535-36, Comment 19.
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c. By letter dated May 14, 2019, the Director commented further,
acknowledging that the Rule does not require groundwater modeling but that modeling
could help ensure appropriate well spacing and the number of downgradient wells needed
to detect potential releases. Doc. 102, p. 6632, Comment 19.
d. By letter dated May 22, 2019, Loughlin responded to the Director’s
Comment 19, with the following concerns: (i) there are no rules governing a modeling
approach; (ii) modeling would require a number of assumptions with no regulatory basis;
(iii) there is not enough data to calibrate the modeling; and (iv) running the model under
different scenarios would be extremely burdensome. Loughlin also documented
compliance with the ground water monitoring well Rule. Doc. 103, pp. 6636-37-38.
After receipt of public comments, PPR’s reply comments and Friends’ sur-reply comments
and after the above comment and response exchange with PPR on the Loughlin Study, the
Director issued the Permit Modification, including a Statement of Basis, on July 10, 2019.
The Statement of Basis documents the basis and rationale for the Director’s determination
that the proposed groundwater monitoring wells satisfy the Rule, including a response to Friends’
claim that the Director should have required PPR to conduct modeling:
Public Comment #7
Commenters were concerned that the number of monitoring wells is insufficient to meet
the requirements of the rules. One commenter suggested an equation for determining the
appropriate number of downgradient monitoring wells.
Division Response
R315-308-2 of the Utah Administrative Code requires a minimum of one upgradient, and
two downgradient monitoring wells. PPR installed one monitoring well upgradient and
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three monitoring wells at the downgradient boundary of the landfill. The Director believes
these wells are sufficient to show background water conditions and to detect releases from
the landfill. The Director has found no basis to use the equation provided by the
commenter as a standard for determining the number of monitoring wells. Although the
Division did suggest development of a groundwater model to determine the number of
downgradient wells, it was concluded that some input parameters were ill-defined, so that
a specific inference from a groundwater model would be too subjective to be useful in
making a decision.
The number of monitoring wells in the approved modification satisfies the requirements
R315-308 of the Utah Administrative Code. Doc. 146, p. 9366.
In addition, as discussed in Section III below, the Director relied on information other than
modeling as the basis for his determination that monitoring wells satisfy the requirements of Utah
Administrative Code R315-30-28.
Friends claims that the Director violated Utah Code Ann. Section 19-6-108(9) by
approving the permit modification without requiring evidence that the management of solid waste
will not pose a substantial present or potential hazard to human health or the environment. The
Director satisfied this directive by determining that the Groundwater Monitoring System satisfied
the groundwater monitoring requirements in Utah Administrative Code R315-308-2 and thus the
Director complied with the law.
The Director has considerable authority and discretion to interpret Utah Administrative
Code R315-308-2 and has special expertise in overseeing permitting of solid waste landfills. The
Director documented the basis for, and the record supports, his determination that the Monitoring
Well System complies with Utah Administrative Code R315-308-2 and that PPR was not required
to conduct modeling Friends has failed to carry its burden to overcome the Director’s
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determination. Specifically, Friends has the burden to identify support that modeling is required
and that the Director’s decision to not require modeling was a clear error. Friends asserts that the
Director erred because the Director ignored the Division staff’s comments to PPR requesting
modeling, but the Director has substantial discretion to interpret the regulations and is not required
to follow the staff comments. The ALJ finds that the Director did not err in determining that the
Monitoring Well System complies with Utah Administrative Code R315-308-2 and that PPR was
not required to conduct modeling and .
III.THE DIRECTOR DID NOT ERR IN ISSUING THE PERMIT MODIFICATION.
Friends argues that it was clearly erroneous for the Director to approve the Permit
Modification without requiring PPR to properly characterize the hydrogeology beneath the landfill
site – information that is necessary for the Director to determine whether PPR’s groundwater
monitoring system is sufficiently protective - in face of record evidence that highly fractured,
largely uncemented bedrock is hydraulically connected to the shallow aquifer. The essence of
Friends’ appeal is that the Director erred in approving the three downgradient groundwater
monitoring wells because the Director did not require PPR to properly characterize the
hydrogeology beneath the landfill. Utah Administrative Code R315-308-2(2) (the “Ground Water
Monitoring System Rule”) requires:
(2) The ground water monitoring system must consist of at least one background
or upgradient well and two downgradient wells, installed at appropriate locations
and depths to yield ground water samples from the uppermost aquifer and all
hydraulically connected aquifers below the facility, cell, or unit. The
downgradient wells shall be designated as the point of compliance and must be
installed at the closest practicable distance hydraulically down gradient from the
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unit boundary not to exceed 150 meters (500 feet) and must also be on the
property of the owner or operator:
(a) the upgradient well must represent the quality of background water that
has not been affected by leakage from the active area; and
(b) the downgradient wells must represent the quality of ground water
passing the point of compliance. Additional wells may be required by the Director
in complicated hydrogeological settings or to define the extent of contamination
detected.
Utah Admin. Code R315-308-2(2).
Friends’ argument is broken down into the following subsections.
A. The Director Did Not Err in Determining That the Bedrock Beneath the
Landfill is Cemented and There is no Hydraulic Connection Between the
Shallow Aquifer and Bedrock.
Friends asserts that record evidence shows that due to the presence of fractured
bedrock directly beneath the shallow aquifer at the landfill site, there is a direct
hydraulic connection between the shallow aquifer and the fractured bedrock
formations below it. Opening Brief at pp. 18-29.
The Statement of Basis sets forth the Director’s determination that there is no
hydraulic connection between the uppermost aquifer and potential lower aquifers:
In accordance with Utah Admin. Code R315-311-1, the Director has duly considered
all comments, reply comments, and sur-reply comments, including those dealing with
the possibility that there is a hydraulic connection between the uppermost aquifer and
potential lower aquifers. He is satisfied that the evidence supports his conclusion that
there is not such a hydraulic connection. He recognizes the importance of the Great
Salt Lake ecosystem and the resources the Lake provides. He understands the
concerns of commenters who believe there is, or could be, a hydraulic connection
between water in the uppermost aquifer or a lower aquifer and the Lake. He is not
persuaded that the evidence of such a possible connection is strong enough to warrant
either denying PPR’s requested modification or, at this time, requiring additional
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study. Should circumstances change or new information arise, he believes he has the
authority to require PPR to provide additional information and, if appropriate, change
its groundwater monitoring program. Doc. 146, p. 9362.
Also, the Statement of Basis summarizes the public comments, PPR’s replies to public comments,
and sur-reply comments, with a Division response following each comment or reply. Each of the
following comments/replies and Division responses in the Statement of Basis document the basis
for the Director’s decision that the bedrock is cemented and that there is no hydraulic connection
between the shallow aquifer and bedrock:
Public Comment #2
Commenters stated that the placement of groundwater monitoring wells must be at
appropriate locations and depths to yield samples from the uppermost aquifer and all
hydraulically connected aquifers below the facility, cell, or unit (Utah Code Ann. R315-
308-2(2)). There is no analysis or evidence to establish that these additional requirements
of Utah Admin. Code § R315-308-2(2) have been met. Commenters mentioned that
additional studies and reviews should be undertaken before issuing the permit
modification in order to ensure that the proposed wells will function as intended.
Division Response
Downgradient monitoring wells have been installed in locations to detect any release to
groundwater from the landfill. PPR has submitted, and is required to follow, a
groundwater monitoring plan to ensure that any impact from the landfill will be detected
by the downgradient wells. The upgradient and downgradient wells appear to monitor the
same hydrologic unit (fanglomerate), as evident from the boring logs presented in the
Hydrogeological report (December 2018).
The location of the monitoring wells as approved in this modification satisfy the
requirements R315-308-2 of the Utah Administrative Code. Doc. 146, p. 9364.
Public Comment #3
Commenters stated that there is a lack of information regarding groundwater connection
between the Landfill and the lake. Groundwater connections from the site to the lake have
not been well researched. There is the potential of groundwater flow from upland areas to
lakebed spring systems. Commenters asked if groundwater monitoring wells will monitor
both the alluvium and the bedrock groundwater.
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Division Response
The Division acknowledges the commenters’ concerns. R315-308-2 of the Utah
Administrative Code requires a groundwater monitoring system to have a minimum of two
downgradient monitoring wells that represent the quality of groundwater passing through
the point of compliance. Groundwater monitoring will follow the sampling plan to ensure
that any release from the landfill is detected in a timely manner. The downgradient
monitoring wells are the designated points of compliance for the operation of the landfill.
Typically, the groundwater monitoring wells monitor the uppermost aquifer, be it alluvial
or bedrock. A hydraulic connection is possible between any combination of bedrock and
alluvium; however, boring log information provided by the Permittee indicates it is
unlikely that there is flow from the alluvium into the bedrock, as evidenced by the
production well log.4 (Footnote added).
The information PPR has provided concerning possible hydraulic connection between the
uppermost aquifer and lower aquifers satisfies the requirements R315-308 of the Utah
Administrative Code. Doc. 146, pp. 9364-9365.
Public Comment #10
The Utah Geologic Survey (UGS) has not yet updated intermediate-scale or detailed-scale
geologic maps of the area. Preliminary site-specific geologic data indicate a thin cover of
Quaternary surficial deposits overlying faulted and fractured bedrock. It appears that the
consultants for PPR used a geologic map (Crittenden, M.D., Jr., 1988, Bedrock geologic
map of Promontory Mountains, Box Elder County, Utah) and updated it with site-specific
geologic data. This should be verified by the UGS before proceeding. Commenters were
concerned that there is inadequate understanding of the geology, seismic, faulting, and
mapping of Promontory Point Peninsula.
Division Response
The Director is aware that multiple general studies do exist that suggest faulting within
bedrock formations associated with the Great Salt Lake area, including the Promontory
Point Peninsula. However no site specific evidence has been presented supporting the
commenters’ concerns that there may be faulting in the bedrock beneath the landfill.
4 See summary PPR’s (Loughlin’s) response to the Director’s comments on the Loughlin Study
that “Drilling and groundwater sampling results from the PPR Production Well indicate (1) the
quartzite bedrock penetrated by the PPR Production Well is relatively unfractured, and that the
fractures that are present have been filled by gypsum and clay, (2) this formation is of extremely
low permeability, and (3) the gradient from the bedrock is upward because the aquifer is under
confined conditions.” Doc. 101, p. 6532.
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Rather, evidence from core samples obtained during construction of the production well
indicates fractures are cemented.
The information PPR has provided satisfies the requirements R315-308 of the Utah
Administrative Code. Doc. 146, p. 9368.
In addition, the Division staff and the Director evaluated the Loughlin Study, including PPR’s
responses (prepared by Loughlin) to the Director’s comments on the Loughlin Study which are in
the Administrative Record. The above Division Responses to public comments state that the
information PPR has provided, including the information concerning possible hydraulic
connection between the uppermost aquifer and lower aquifers, satisfies the requirements of the
Ground Water Monitoring System Rule. Information provided by PPR includes the Loughlin
Study and PPR’s written responses to the Director’s comments and questions on the Loughlin
Study, specifically the following information on hydraulic connection and bedrock:
1.“Test pit excavations and monitor well drilling performed by AGEC (2003) and Tetra
Tech (2015, 2016) were completed using a backhoe and auger rigs. Both investigations
identified the presence of unconsolidated deposits overlying deposits which resulted in
auger refusal or backhoe refusal. AGEC (2003) identified bedrock in 23 test pit locations
based on backhoe refusal. However, it is likely that a number of these test pits reached
total depth in the boulders of the fanglomerate deposit and not within bedrock.
Additionally, the boring for Well MW-1 completed by AGEC shows that bedrock was
intercepted at a depth of 43 feet, but the auger drill rig was able to continue drilling and
drive samples through the “bedrock”. Based on this evidence, it is probable that the boring
for Well MW-1 penetrated the fanglomerate deposit and not bedrock.
A seismic refraction survey was performed near the Phase 1 Landfill cell by GEOvision
(2015), for Tetra Tech. The purpose of the seismic refraction survey was to ascertain the
subsurface velocity structure and rip ability beneath six seismic lines, each with a length of
705 feet, and designated SL-1 through SL-6. GEOvision indicated in their report that P-
wave velocities which are greater than 7,500 feet per second (ft/s) would be considered
non-rippable bedrock. The Phase 1 Landfill Cell is located between two of these seismic
lines, SL-2 and SL-5, which are both shown on Figure 3. Seismic refraction interpretive
results indicate:
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1. Below seismic line SL-2, velocities that exceed 7,500 ft/sec exist between
about 80 and 150 feet; and
2. Below seismic line SL-5, velocities that exceed 7,500 ft/sec are identified at
depths greater than about 160 feet.
The seismic survey results indicate that some of the earlier test pits completed by AGEC in
the areas between seismic lines SL-2 and SL-5 did not reach total depth in bedrock.
Figure 2 shows the location of the PPR Production Well which is near the north end of the
property. Appendix B provides a copy of the well log. Approximately 170 feet of
unconsolidated deposits consisting mostly of subangular limestone gravels overlie bedrock
in the PPR Production Well; see Well Driller’s Report (well log) for Utah Division of
Water Rights (DWRi), Well Identification Number (WIN) 440907, Appendix B.
Bedrock was not encountered in borings for the 2018 monitor wells that were installed
around the Phase 1 Landfill (Loughlin, 2018). The 2018 well borings indicate that Lake
Bonneville deposits range in thickness from 20 to 30 feet and overlie an extensive semi-
consolidated to consolidated fanglomerate deposit. The fanglomerate consists of silt, clay,
and clasts of quartzitic materials that range from sand size to boulders. Geologic logs for
the 2018 monitor well borings are presented in Appendix A. The fanglomerate deposit
may have been identified in previous site investigations as “weathered bedrock”. Doc. 93,
pp. 9-10.
2.The Promontory Well penetrated the Geertsen Canyon Quartzite, Browns Hole
Formation, and Mutual Formation. The Loughlin Study describes these
formations as “highly to intensely fractured/jointed”. Doc, 93, pp. 5910-11. In
response to questions from the Division about the impact that these subsurface
geologic features have on groundwater systems and flow, PPR (Loughlin)
responded:
a.Descriptions of bedrock depicted above and on pages 10 and 11 of
the Hydrogeologic Study are observations of surface outcrops and
intensely fractured rocks under subaerial conditions that do not
reflect conditions of subsurface bedrock, as identified during the
drilling of the PPR Production Well. Doc. 101, p. 6527.
b.Based on data from the PPR Production Well, “(1) the bedrock is
dry to at least 730 feet, (2) the aquifer developed by the well is
confined, and (3) the bedrock aquifer gradient is upward and
because the gradient is upward from the much deeper bedrock
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aquifer, the shallow fanglomerate aquifer identified in the vicinity
of the landfill does not intermingle or flow to the deeper bedrock
aquifer.” Doc. 101, p. 6527.
c.Drilling and groundwater sampling results from the PPR Production
Well indicate (1) the quartzite bedrock penetrated by the PPR
Production Well is relatively unfractured, and that the fractures that
are present have been filled by gypsum and clay, (2) this formation
is of extremely low permeability, and (3) the gradient from the
bedrock is upward because the aquifer is under confined conditions.
Doc. 101, p. 6532.
d.The landfill and the aquifer beneath the landfill are within an
unfractured, low permeability fanglomerate deposit. No bedrock
was intercepted beneath the landfill. Doc. 101, p. 6532.
3.Although bedrock is intensely fractured where exposed at the ground surface,
bedrock in the PPR Production Well was dense and hard and relatively
unfractured. Where fractures were encountered in the PPR Production Well,
they appeared to be filled with clay or mineralization. Doc. 93, p. 5919.
4.18. In regard to Aquifer Parameter Values on page 18 and in Appendix D, Slug Test
Analyses, while we agree that the correct slug test methods (Dagan for monitoring wells
MW-1 through MW-5, and Bouwer-Rice for monitoring wells MW-6 through MW-9,
respectively), were employed, Appendix D only lists the AQTESOLV printouts. Please
provide the graphical representation of the curve fitting, as we would like to ascertain that
the line of best fit, especially in the case of the Bouwer-Rice method, was chosen in a
consistent manner.
The following table presents the December 19, 2018 Hydrogeologic Study results and the
findings of manual curve matching the 2018 monitor wells. [slug test table omitted].
Comparison of manual curve matching to the original analysis using automatic curve
matching indicates that differences in the results are negligible. Graphical representations
of the slug test performed for the 2018 monitor wells MW-6 through MW-9 and analysis
using the method of Bouwer and Rice (1976) are attached. Results indicate that the
fanglomerate formation has very low permeability, as would be expected in a formation
that contains an abundance of silt and clayey materials.
Doc. 101, pp. 6534-35.
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5.The Loughlin Study includes the following findings and conclusions:
MONITOR WELLS AND GEOLOGY
•Monitor wells MW-6 through MW-8 were installed in the first
intercepted groundwater aquifer directly downgradient from the
downgradient edge of the landfill cell at distances that range from
about 60 to 260 feet from the landfill.
•In the vicinity of the Phase I landfill cell, depth to bedrock exceeds
148 feet.
•The first aquifer intercepted beneath the landfill cell is within the
semi-consolidated fanglomerate deposit.
•The fanglomerate surface slopes generally in the same direction as
the ground surface.
AQUIFER PARAMETERS
•Hydraulic conductivities estimated from well testing differ by three orders of
magnitude. The hydraulic conductivity of the unconsolidated deposits is
considerably greater (more permeable) than the semi-consolidated deposits and
bedrock. Slug testing of 9 monitor wells and pump testing the PPR Production
Well indicate that the hydraulic conductivities in:
o Unconsolidated deposits monitored by MW-1 through MW-4 ranged
from about 8 to 124 ft/day;
o Semi-consolidated deposits monitored by MW-6 through MW-9 ranged
from about 1 to 7 ft/day; and
o Bedrock ranged 0.03 to 4 ft/day.
•Estimated groundwater velocities range from about 0.01 ft/day to 9 ft/day in the
vicinity of the landfill cell.
Doc. 93, pp. 20, 22.
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Friends admits that the bedrock aquifer at the production well is a confined aquifer but
asserts that the Production Well data does not apply to the landfill hydrogeology because of the
distance of the Production Well from the landfill, the elevation of the top of the production well
is higher than the monitoring wells, the flanglomerate layer was not found at the production
well, and there is no shallow aquifer in the Production Well. Opening Brief, p. 26-27; Friend’s
Reply to PPR’s Response to Friends’ Opening Brief, p. 4. However, the Director determined,
based on information in the Loughlin Study, Loughlin’s responses to the Director’s comments,
and the Director’s expertise, that it is unlikely there is flow from the alluvium (flangomerate
aquifer) at the landfill into the bedrock, as evidenced by the production well log. Doc. 146, p.
9365.
Friends also asserts that the Director ignored site-specific evidence of bedrock fracturing,
citing to the TetraTek and AGEC studies. Opening Brief, pp. 18-29. However, the Loughlin
Study disagrees with the TetraTek and AGEC’s studies observations and conclusions, stating
that they did not use drilling equipment sufficient to drill through bedrock in test pits or
monitoring wells (except MW-5) and that statements that the bedrock was highly fractured are
inaccurate. Doc. 101, pp. 6526-27. The Loughlin Study concludes that although bedrock is
intensely fractured where exposed at the ground surface, bedrock in the Production Well was
dense and hard and relatively unfractured, based on core samples, and that the bedrock observed
on the ground surface is limestone bedrock which was not found beneath the production well.
Doc. 101, p. 6531. Based on information in the Loughlin Study and Loughlin’s responses to the
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Director’s comments, and the Director’s expertise, the Director concluded that there is no site-
specific evidence of bedrock fracturing. Doc. 146, p. 9368.
Friends also asserts that the production well log only indicates cementing in the Mutual
Formation. Opening Brief, pp. 24-25. PPR admits that the production log only indicates
cementing in the Mutual Formation. Doc. 101, p. 6531. However, Loughlin concludes “(1) the
quartzite bedrock penetrated by the PPR Production Well is relatively unfractured, and the
fractures that are present have been filled by gypsum and clay, (2) this formation is of extremely
low permeability, and (3) the gradient from the bedrock is upward because the aquifer is under
confined conditions. Doc. 101, p. 6532. The Director accepted the information provided by PPR
concerning a possible hydraulic connection between the uppermost aquifer and potential lower
aquifers as satisfying R315-308. Doc. 146, p. 9365.
As noted above, the Director’s determinations that the bedrock beneath the landfill is
cemented and that there is no hydraulic connection between the shallow aquifer and the bedrock
are factual, technical, and scientific determinations that are supported by the record. Although
Friends marshaled and acknowledged some of the evidence, it failed to marshal and acknowledge
all of the evidence in the record that supports the Director’s determination.5 The Director is
therefore arguably entitled to a presumption that his determinations are not clearly erroneous.
However, even assuming that Friends satisfied its burden to marshal the evidence, Friends has
5 For example, Friends does not marshal evidence in the Loughlin Study on slug tests, aquifer parameters or upward
gradient of the bedrock aquifer, supporting the Director’s determination that there is no hydraulic connection between
the shallow aquifer and the bedrock.
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failed to carry its burden to overcome the Director’s determination. Friends has the burden to
identify information that there is a hydraulic connection between the flanglomerate aquifer and
the bedrock, that the bedrock is not cemented, and that the Director’s decision was a clear error.
Friends raises issues and makes speculative and general statements, but does not offer persuasive,
specific evidence of a hydraulic connection between the shallow (flanglomerate) aquifer and the
bedrock. The ALJ therefore finds that the Director’s determinations that the bedrock beneath the
landfill is cemented and that there is no hydraulic connection between the shallow aquifer and the
bedrock are supported by the record and are not clearly erroneous.
B. The Director Did Not Err in Determining That the Three Downgradient
Monitoring Wells Are Sufficient to Detect Any Releases From Cell 1A.
Friends asserts that the three downgradient wells are not sufficient, due to complex geology of
the site and fractured bedrock, citing to statements by Dr. Carling, Dr. Baskin and Compass
Minerals. Opening Brief at pp. 8-10, 14-18.
The Statement of Basis sets forth the Director’s determination that the three downgradient
monitoring wells are sufficient to detect any releases from the landfill:
The Director believes that the upgradient well and three downgradient wells PPR has
proposed meet the requirements of Utah Admin. Code R315-308-2(2). He is satisfied that
the downgradient wells will detect releases from the cell they are intended to monitor.
Doc. 146, p. 9362.
In addition, each of the following comments/replies and Division responses in the
Statement of Basis address the sufficiency of the monitoring wells:
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Public Comment #2
Commenters stated that the placement of groundwater monitoring wells must be at
appropriate locations and depths to yield samples from the uppermost aquifer and all
hydraulically connected aquifers below the facility, cell, or unit (Utah Code Ann. R315-
308-2(2)). There is no analysis or evidence to establish that these additional requirements
of Utah Admin. Code § R315-308-2(2) have been met. Commenters mentioned that
additional studies and reviews should be undertaken before issuing the permit
modification in order to ensure that the proposed wells will function as intended.
Division Response
Downgradient monitoring wells have been installed in locations to detect any release to
groundwater from the landfill. PPR has submitted, and is required to follow, a
groundwater monitoring plan to ensure that any impact from the landfill will be detected
by the downgradient wells. The upgradient and downgradient wells appear to monitor the
same hydrologic unit (fanglomerate), as evident from the boring logs presented in the
Hydrogeological report (December 2018).
The location of the monitoring wells as approved in this modification satisfy the
requirements R315-308-2 of the Utah Administrative Code. Doc. 146, p. 9364.
Public Comment #7
Commenters were concerned that the number of monitoring wells is insufficient to meet
the requirements of the rules. One commenter suggested an equation for determining the
appropriate number of downgradient wells.
Division Response
R315-308-2 of the Administrative Code requires a minimum of one upgradient, and two
downgradient monitoring wells. PPR installed one monitoring well upgradient and three
monitoring wells at the downgradient boundary of the landfill. The Director believes
these wells are sufficient to show background conditions and to detect releases from the
landfill. The Director has found no basis to use the equation provided by the commenter
as a standard for determining the number of monitoring wells. Although the Division did
suggest development of a groundwater model to determine the number of downgradient
wells, it was concluded that some input parameters were ill-defined, so that a specific
inference from a groundwater model would be too subjective to be useful in making a
decision.
The number of monitoring wells in the approved modification satisfies the requirements of
R315-308 of the Utah Administrative Code. Doc. 146, p. 9366.
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Public Comment #8
Commenters were concerned that the interface between monitoring wells within the
alluvium and within bedrock has not been established. Additionally, with potential
changes in groundwater flow direction over time, more wells should be installed.
Division Response
The Hydrogeologic report provides evidence that groundwater samples taken from the
monitoring wells are representative of the aquifer condition below the landfill. See the
response to Public Comment #2 and #3 above.
The information PPR has provided satisfies the requirements R315-308 of the Utah
Administrative Code. Doc. 146, p. 9367.
Public Comment #9
There are potential impacts to the GSL ecosystem and related economy, including to
microbialites, the avian foodweb, brine shrimp cyst harvest industry, and mineral
extraction industries, from groundwater contamination associated with a release from the
Landfill facility. Commenters were concerned about how groundwater flow under the
Landfill impacts the microbialites in the Great Salt Lake. Current models of microbialite
formation suggest they form at groundwater seeps forming calcium carbonate.
Microbialite structures in the Great Salt Lake are the densest on the shallow shelfs
bounded by faults as the water depth changes. Commenters pointed out that there are
faults within 4,000 meters west of the western shore of Promontory Point. They are
concerned that groundwater could be contaminated by operation of the landfill and could
enter those faults without being detected. The Saline Wet Meadow wetland complex is
along the entire western shore of Promontory Point. While this can be fed by surface
water that contributes to its wetland characteristics, the West Promontory complex was
understood to be fed by shallow groundwater. Commenters were also concerned about
the potential impacts from contamination of stored solid waste containing heavy metals
migrating into groundwater which could impact the migratory bird and waterfowl
foodweb of the Great Salt Lake ecosystem. Commenters were also concerned that the
groundwater system under the Landfill would be contaminated by Landfill solid waste
seepage, impacting the Great Salt Lake ecosystem that the mineral extraction production
and brine shrimp industries rely on. These industries generate billions of dollars into
Utah’s economy, and help support the Department of Natural Resources.
Division Response
The Director understands the commenters’ concern regarding the GSL ecosystem and its
environmental and economic significance. However the scope of the modification request
applies to the relocation of the groundwater monitoring wells, which have been relocated
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to comply with R315-308-2 of the Utah Administrative Code. The groundwater
monitoring program is designed to detect a release from the landfill to the upper most
aquifer and thereby be protective of the resources about which the commenters have
concern. See response to comments #2 and #3 above.
The information PPR has provided satisfies the requirements R315-308 of the Utah
Administrative Code. Doc. 146, pp. 9367-68.
Information provided by PPR, including the Loughlin Study and PPR’s written responses
to the Director’s comments and questions on the Loughlin Study, conclude that the three
downgradient groundwater monitoring wells are sufficient:
1.‘[T]he spacing of the three downgradient wells is appropriate, given the low particle
velocities in the fanglomerate aquifer beneath the landfill”. Doc. 101, P. 6535-36.
2.The hydrogeologic characteristics of the landfill area have been defined and show that the
wells meet the requirements of R315-308. Doc. 103, pp. 6637-38.
3.The groundwater gradient and flow direction beneath the cell is south-southwest, as
demonstrated by groundwater level measurements obtained between October 2018 and
May 2019. Measurements obtained show wells MW-6, MW-7, and MW-8 are
downgradient of the cell. Variations in groundwater levels and flow direction occur but
wells MW-6, MW-7 and MW-8 continue to be downgradient. Additionally, MW-7 is
directly downgradient of the leachate collection sump, the lowest collection point for the
landfill drainage net and, therefore, is the most probable location for detection of a
potential release. Doc. 103, p. 6637.
The Director’s determinations that the bedrock beneath the landfill is cemented is
addressed above in Section III.A. With respect to Friends’ claim that the hydrogeology beneath
the landfill is complex or complicated, R315-308-2 provides that the Director may require
additional downgradient wells in “complicated hydrogeological settings” (R315-308-2(2)(b), but
the rules do not define this term. It is up to the Director’s discretion to determine whether there is
a complicated hydrogeological setting and whether to require any additional wells. The Director
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did require an additional third downgradient well, instead of the required minimum of two
downgradient wells. Although the record does not reflect whether the Director considered the
landfill to be a complicated hydrogeological setting (using this terminology)6, the Director
determined that the three downgradient wells were sufficient to detect any releases from the
landfill.
The Director’s determination that the three downgradient monitoring wells are sufficient to
detect any releases from the landfill is a factual, technical, and scientific determination that is
supported by the record, as noted above. Friends has failed to carry its burden to overcome the
Director’s determination. Friends has the burden to identify information that the three
downgradient monitoring wells will not detect releases from the landfill and that the Director’s
decision was a clear error. Friends asserts that the wells are not sufficient due to complex
geology and fractured bedrock, but does not offer persuasive, specific evidence of fractured
bedrock, complex geology, or that the wells will not detect any potential releases from the
landfill. The ALJ therefore finds that the Director’s determinations that the three downgradient
monitoring wells are sufficient to detect any releases from the landfill is supported by the record
and is not clearly erroneous.
6 Although the Director refers to “complex geologic features” in a question to PPR about the Loughlin Study, Doc.
100, p. 6522, the record does show that the Director concluded that the landfill was in a “complicated hydrogeological
setting.”
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C. The Director Did Not Err in Not Requiring PPR to Drill Into the Bedrock
Beneath Cell 1A.
Friends asserts that the confining layer below the shallow aquifer must be identified in
order to define the uppermost aquifer and to adequately design a monitoring system. Friends cites
the 1986 RCRA Ground-Water Monitoring Technical Enforcement Guidance Document
(“TEGD”) for the proposition that one or more boreholes must be drilled into the first confining
layer beneath the uppermost aquifer to identify the confining layer beneath the uppermost aquifer.
Opening Brief at pp. 16-18. This EPA guidance document does not apply to this proceeding.7
The Statement of Basis sets forth the Director’s basis for not requiring PPR to drill into
the bedrock beneath Cell 1A:
Sur-Reply Comment #1
Commenters were concerned that underneath the landfill cell, the interconnectivity of all
aquifers vs. the groundwater-bearing aquifer (fanglomerate) was not adequately
investigated.
Division Response
See response to comments #2, #3, and #8 above. In addition, constructing additional
borings into bedrock could create potential conduits for contamination to the hypothetical
lower aquifer should a release occur.
Doc. 146, p. 9372.
The information PPR has provided satisfies the requirements R315-308 of the Utah
Administrative Code. Doc 146, p. 9372.
Utah Administrative Code R315-308-2 does not require drilling into the confining layer
beneath the uppermost aquifer. As discussed above in Section III.A., the Division defined the
7 On July 20, 2020, the ALJ issued a Declaratory Order declaring that the Utah Solid and Hazardous Waste Act and
corresponding rules are the statues and rules applicable to Friends’ Petition for Review, not the federal statutes or
regulations.
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first confining layer using the monitoring well data and the Production Well log and data, which
show that that the bedrock is relatively unfractured, any fractures in the bedrock are cemented,
and the bedrock aquifer is under confined conditions. The Director’s determination that PPR was
not required to drill into the bedrock beneath the landfill is a factual, technical, and scientific
determination that is supported by the record, as noted above. Friends has failed to carry its
burden to overcome the Director’s determination. Friends has the burden to show that PPR was
required to drill into the bedrock beneath the landfill and that the Director’s decision was a clear
error. Friends asserts that EPA guidance requires drilling into the bedrock, but EPA guidance
does not apply to this proceeding. Utah regulations do not include require drilling into the
bedrock and boring into the bedrock could create potential conduits. The Director relied on
monitoring well data and the Production Well log and data to characterize the confining layer
under the landfill. The ALJ therefore finds that the Director’s determinations that that PPR was
not required to drill to the bedrock beneath the landfill is supported by the record and is not
clearly erroneous.
D.The Director Did Not Err in Determining There is no Evidence of Springs.
Friends asserts that there is record evidence that springs exist downgradient of the landfill
and that the springs are likely connected to the aquifer beneath the landfill. Friends points to
statements by Dr. Baskin, Dr. Baxter, Dr. Carling and Compass Minerals. Opening Brief at pp.
29-31. The Director reviewed these statements but did not find any specific evidence of Friends’
assertion. The Statement of Basis addresses this determination:
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Public Comment #4
There is a need for more extensive studies of groundwater movement on the tip of
Promontory peninsula and a determination of the source area for lakebed springs.
Commenters asked if groundwater fate and transport studies have been conducted. There
were statements concerning the fractured flow in bedrock underneath the site, and
movement of groundwater through it. Commenters also asked if the source area for the
springs on the Great Salt Lake lakebed has been assessed, and if there is a nexus between
the recharge area and the springs.
Division Response
See discussion in Public Comment #2 and #3 above. There is no requirement in the solid
waste rules to conduct fate and transport studies for the Promontory Peninsula.
Furthermore, no evidence has been presented to the Director that springs exist
downgradient of the landfill that could reasonably be expected to be hydraulically
connected to the upper most aquifer beneath the landfill. Commenters have asserted that
there are springs that are hydraulically connected, but have not provided evidence beyond
speculation to support those assertions.
The information PPR has provided concerning possible hydraulic connection between the
uppermost aquifer and lower aquifers satisfies the requirements R315-308 of the Utah
Administrative Code. Doc. 146, p. 9365.
The Director’s determination that there is no record evidence that a specific spring exists
downgradient of the landfill or that a specific spring is likely connected to the aquifer beneath the
landfill is a factual, technical, and scientific determination that is supported by the record, as
noted above. Friends has failed to carry its burden to overcome the Director’s determination.
Friends has not identified any specific springs or a pathway from the landfill to a specific spring.
Friends has not shown that contaminated groundwater from the landfill is likely to reach a
specific spring. Friends has not proven that the Director’s decision was a clear error. The ALJ
therefore finds that the Director’s determination that that there is no record evidence that a
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specific spring exists downgradient of the landfill and that a specific spring is likely connected to
the aquifer beneath the landfill is supported by the record and is not clearly erroneous.
In summary, Subsections III. A. through D. collectively support the ALJ’s finding that the
Director’s decision to issue the Permit Modification is supported by the record and is not clearly
erroneous.
IV.THE DIRECTOR DID NOT ERR IN APPROVING THE SAMPLING SCHEDULE
Friends asserts that in light of evidence that highly fractured bedrock is present beneath
the landfill and because contamination from the landfill could quickly reach the downgradient
springs, it was clearly erroneous for the Director to not require a more aggressive sampling
schedule. Opening Brief at 32-33.
Friends’ sampling frequency claim is based on its claim that highly fractured, largely
uncemented bedrock is hydraulically connected to the shallow aquifer and the existence of
downgradient springs. As discussed above in Section III.A., the ALJ finds that the Director did
not err in determining that the bedrock beneath the landfill is largely unfractured, the bedrock
fractures are cemented and that the fanglomerate aquifer identified in the vicinity of the landfill
does not flow to the deeper bedrock aquifer because the bedrock aquifer is under confined
conditions with an upward gradient. Also, as discussed above in Section III.D., the ALJ finds that
the Director did not err in determining there is no record evidence that a specific spring exists
downgradient of the landfill and that a specific spring is likely connected to the aquifer beneath
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the landfill. Based on these findings, Friends’ sampling frequency claim has no merit. The ALJ
therefore finds that the Director’s determination that the Permit Modification, which includes the
sampling schedule, satisfied R315-308-2 is supported by the record and is not clearly erroneous.
V.PPR IS NOT ENTITLED TO AN AWARD OF ATTORNEY FEES
PPR asserts that it is entitled to an award of attorney fees under Utah Code § 78B-5-825
because Friends’ Petition for Review and briefs are without merit and not brought or asserted in
good faith. Utah Code § 78B-5-825 provides that [i]n civil actions, the court shall award
reasonable attorney fees to a prevailing party if the court determines that the action or defense to
the action was without merit and not brought or asserted in good faith.”
Utah Code § 78B-5-825 is part of the Judicial Code and applies to judicial proceedings,
not special adjudicative proceedings. The statue and regulation governing special adjudicative
proceedings, Utah Code §19-1-301.5 and Utah Admin. Code R305-7, do not provide for the
award of attorney fees. In addition, PPR does not offer proof that Friends’ claims were without
merit and were not brought or asserted in good faith. Further, based on the record and Friends’
briefs and oral arguments at the hearing, the ALJ finds that Friends’ claims do have merit and that
there is no evidence in the record that Friends’ claims were not brought or asserted in good faith.
RECOMMENDED ORDER
Sections I through IV of the Conclusions of Law collectively support the ALJ’s finding
that Friends has not met its burden to demonstrate that the Director erred in issuing the Permit
Modification and that the Director’s decision to issue the Permit Modification is supported by the
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record and is not clearly erroneous. Having satisfied my charge to undertake a special
adjudicative proceeding in accordance with Utah Code § 19-1-301.5, I recommend that the
Executive Director issue the following order:
1.Because Friends failed to preserve its claim that the Fanglomerate is the Geersten
Canyon Formation, this claim is dismissed, with prejudice.
2.The Director did not err in determining that the Monitoring Well System complies
with Utah Administrative Code R315-308-2 and that PPR was not required to conduct modeling.
3.The Director did not err in issuing the Permit Modification.
4.The Director did not err in determining that the bedrock beneath the landfill is
cemented and there is no hydraulic connection between the shallow aquifer and bedrock.
5.The Director did not err in determining that the three downgradient monitoring
wells are sufficient to detect any releases from Cell 1A.
6.The Director did not err in not requiring PPR to drill into bedrock beneath Cell 1A.
7.The Director did not err in determining that there is no evidence of springs.
8.The Director did not err in approving the sampling schedule.
9.PPR is not entitled to an award of attorney fees.
10.Deny Friends’ request for remand of the Director’s Groundwater Permit
Modification to require the Director to comply with and properly apply the statute and rules to
ensure protection of local groundwater and Great Salt Lake from contamination.
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NOTICE OF OPPORTUNITY TO COMMENT
Parties may file comments on the Recommended Order with the Executive Director within
ten business days of service of this Recommended Order in accordance with the requirements of
Utah Admin. Code R305-7-213(6). Comments shall not exceed 15 pages. A party may file a
response to the other party’s comments, not to exceed five pages, within five business days of the
date of the service of the comments.
DATED this 12th day of February, 2021.
_________________________________
Lucy B. Jenkins
Administrative Law Judge
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CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of February, 2021, a true and correct copy of the
foregoing ALJ’S STATEMENT OF MATERIAL FACTS, CONCLUSIONS OF LAW AND
RECOMMENDED ORDER ON THE MERITS, was sent by electronic mail to the following:
Administrative Proceedings Records Officer
[e-mail]
Rob Dubuc
Friends of Great Salt Lake
150 South 600 East, Suite 5D
Salt Lake City, Utah 84102
[e-mail]
Raymond Wixom
Assistant Attorney General for the Director
Environment Division
Utah Attorney General’s Office
195 North 1950 West
Salt Lake City, Utah 84116-3097
[e-mail]
Director Ty Howard
Utah Department of Environmental Quality
Division of Waste Management & Radiation Control
[e-mail]
Bradley R. Cahoon
Tyler R. Cahoon
Dentons Durham Jones Pinegar P.C.
111 S. Main Street, Suite 2400
Salt Lake City, Utah 84111
[e-mail]
[e-mail]
/s/ Karen Richardson
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