DSHW-2024-009292

DENTONS DURHAM JONES PINEGAR P.C. Bradley R. Cahoon (5925)
Tyler R. Cahoon (16412) Cole P. Crowther (16432) 111 South Main Street, Suite 2400 Salt Lake City, Utah 84111
[phone]
[e-mail] [e-mail] [e-mail]
Attorneys for Petitioner Promontory Point Resources, LLC
BEFORE THE EXECUTIVE DIRECTOR OF THE UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY AND THE DIRECTOR OF THE DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL In re matter of: Promontory Point Resources, LLC SW416
PETITION FOR REVIEW By Promontory Point Resources, LLC November 5, 2024
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PETITION FOR REVIEW
1. This Petition for Review seeks review and remand of a clearly erroneous Final
Permit Order (“Order”) by Director Douglas J. Hansen (“Director”) of the Division of Waste
Management and Radiation Control (“Division”) of the Utah Department of Environmental
Quality dated October 7, 2024 denying Petitioner Promontory Point Resources, LLC’s (“PPR”)
commercial Class V permit application (“Commercial Application”) to change its existing for
profit in-state Class I landfill to a commercial multi-state regional Class V landfill. (Order at 1.)
2. This Petition is filed by PPR with the Executive Director of the Utah Department
of Environmental Quality (“Executive Director”) and the Director pursuant to Utah Code § 19-1-
301.5 and Utah Admin. Code R305-7-203, and § 63G-4-201(3)(a) and 3(b).
3. The Petition is timely. In accordance with Utah Code § 19-1-301.5(6)(b), the
Petition was served on November 5, 2024 via hand-delivery and emailed to the Executive
Director, the Assistant Attorney General representing the Executive Director, the Director, the
Assistant Attorney General representing the Director, and the Administrative Proceedings
Record Officer.
4. Under Utah Code § 19-1-301.5(1)(d) and .6(a), PPR has standing to file this
Petition because it is the person who applied for a commercial Class V landfill permit that was
denied by the Director in his Order. (Order at 1.)
5. The Executive Director has jurisdiction over this Petition pursuant to Utah Code
§ 19-1-202, § 19-6-101 et seq., and Utah Admin. Code R315-301 to -320.
6. Exhibit 1 hereto contains a list of documents that PPR cites to in this Petition;
each document is part of the administrative record pursuant to Utah Code § 19-1-301.5(9)(b).
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REQUESTED RELIEF AND GROUNDS
7. The Executive Director should vacate the Order, remand the matter back to the
Director, and order the Director to approve PPR’s Commercial Application for the following
reasons:
a. The Director’s interpretation of Utah Code § 19-6-108(10)(b)(i), as
applied to PPR by the Director,1 violates the dormant Commerce Clause of the United States
Constitution. Stated differently, by rejecting PPR’s Commercial Application based on an
interpretation of Section 10(b)(i) that PPR failed to establish the need in the state for additional
physical airspace capacity, the Director has imposed a substantial burden on interstate commerce
that does not advance putative local benefits.
b. PPR’s interpretation of Utah Code § 19-6-108(10)(b)(i) properly applies
fundamental rules of statutory construction. The Director’s interpretation does not. Applying all
of the provisions of Section 19-6-108(10)(a), PPR’s expert NERA concluded there is a market
need for changing PPR’s in-state landfill to commercial. The Director admits that there is a
market need to change the in-state landfill to commercial under Section 19-6-108(10)(a). This
finding of market need is consistent with the Legislature’s approval to change the in-state landfill
to commercial. The Director’s misinterpretation of Section 19-6-108(b)(i) renders Section 19-6-
108(10)(a) inoperable and superfluous. The Director erroneously added substantive words
“physical airspace” into Section 19-6-10(b)(i) and did not interpret Section 19-6-108(10) as a
whole or in harmony with all provisions of Section 19-6-108(10) and give effect to every word
of Section 19-6-108(10). The Director also misinterprets “need” to be only a “physical capacity”
1 As the Director notes, PPR is not arguing that Utah Code § 19-6-108(10)(b)(i) is facially discriminatory, as it applies equally to in-state and out-of-state business. (See Basis at 32.)
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need, and not an environmental or market need. To deny changing PPR’s existing in-state
landfill to commercial solely on the basis that there is no need in the state of Utah for the
additional physical airspace capacity is nonsensical. The Director first approved the landfill in
2004, and PPR constructed the first cell of the landfill in 2017. A commercial permit therefore
does not add any additional physical airspace capacity.
c. The Executive Director should find that it was clearly erroneous for the
Director to issue an incomplete Order that makes no determination on whether PPR met Section
19-6-108(11). The Executive Director should find that PPR met the requirements of Section 19-
6-108(11) and remand this matter back to the Director with instructions to find that PPR has met
Section 19-6-108(11). PPR satisfies Subsection (11)(a) because the record evidence shows that
the expected environmental benefits to the state from PPR’s commercial landfill outweighs any
probable adverse environmental effect of which there is none. PPR also satisfies Subsection
(11)(b) because the record evidence proves the need for PPR’s commercial landfill to serve the
industry in the state.
d. PPR has been substantially prejudiced by the Director’s clear error
because PPR would have received a commercial permit but for the Director’s clearly erroneous
interpretation and application of Section 19-6-108(10)(b)(i). The Director’s clear errors are not
harmless because the clear errors affected the outcome as the Director should have approved of
PPR’s Commercial Application.
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PPR’S ARGUMENTS ON APPEAL
8. Argument No. 1: The Director’s interpretation and application of Utah Code
§ 19-6-108(10)(b)(i) to PPR violates the Dormant Commerce Clause of the United States
Constitution.
a. Preservation: PPR preserved this argument in its written public comments
submitted on April 8, 2023. (See Public Comment on Promontory Point Class V Landfill by
Promontory Point Resources, LLC, dated April 8, 2023 (“PPR Comment”) at 11-23; NERA
Economic Consulting’s (“NERA”) Response to Provisional Statement of Basis, dated April 7,
2023 (“NERA Comment”) at 2-4; and NERA PowerPoint titled “Reply to ‘Statement of Basis:
Intention to Deny Class V Landfill Application’” at 4, 6, 8.)
b. Standard of Review: A petition for review must demonstrate that the
Director’s “permit decision is based on a finding of fact or conclusion of law that is clearly
erroneous,” and if the Director “addressed a finding of fact or conclusion of law . . . in a response
to public comment, a citation to the comment and response that relates to the finding of fact or
conclusion of law and an explanation of why the director's response was clearly erroneous or
otherwise warrants review.” Utah Code § 19-1-301.5(6)(d)(v)(G)-(H).
9. Argument No. 2: The Director’s interpretation of Utah Code § 19-6-108(10)(b)(i)
is clearly erroneous.
a. Preservation: PPR preserved this argument in its written public comments
submitted on April 8, 2023. (See PPR Comment at 3, 14-17, 23; NERA Comment at 11-12.)
b. Standard of Review: See standard of review for Argument No. 1, supra.
10. Argument No. 3: It was clearly erroneous for the Director to make no
determination on whether PPR met Section 19-6-108(11).
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a. Preservation: See PPR Comment at 20-22; NERA Comment at 17-19.
b. Standard of Review: See standard of review for Argument No. 1, supra.
11. Argument No. 4: PPR has been substantially prejudiced by the Director’s clear
errors of misinterpreting Utah Code § 19-6-108(10)(b)(i) and failing to make a determination
under Subsection (11).
a. Preservation: See PPR Comment at 23.
b. Standard of Review: See standard of review for Argument No. 1, supra.
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PROCEDURAL HISTORY
PPR’s Landfill and Commercial Application
12. PPR owns and operates the Promontory Point Landfill that is currently permitted
as a for-profit in-state Class I landfill.2 (See Final Statement of Basis (“Basis”) at 1.) In 2020,
PPR submitted the Commercial Application to convert the landfill from a Class I landfill to a
Class V commercial landfill. (Id.)
13. Utah Code § 19-6-108(10)-(11) governs all commercial3 landfill applications but
there are no agency rules implementing the statute.4 Before PPR submitted its Commercial
Application, PPR and its Ph.D. economist expert at NERA met twice with then-Director Ty
Howard and his staff to receive verbal direction on the requirements of Utah Code § 19-6-
108(10)-(11). (PPR Comment at 5; Appendices 11 and 12 thereto.) At the first meeting on
August 13, 2020, Director Howard confirmed that NERA’s economic approach to Utah Code
§ 19-6-108(10)-(11) made sense to him and was logical. (PPR Comment at 5; Appendices 11 and
12 thereto). Director Howard advised NERA to include a review of the ECDC commercial
landfill and an analysis of the regional municipal solid waste market because neither was
included in the commercial application that PPR withdrew in 2018. (PPR Comment at 5;
Appendices 11 and 12 thereto.)
2 The Order incorrectly states that PPR’s Class I landfill is not for profit. (Basis at 1.) There are
two types of Class I landfills: non-commercial or for profit like PPR’s that is permitted to be
under contract with local governments within the state to dispose of nonhazardous solid waste generated within the boundaries of the local governments. See Utah Code § 19-6-102(3)(b)(iii); Utah Admin. Code R315-301-2(7). 3 Because the statute uses the term “commercial,” this Petition uses that term, rather than Class
V. 4 Up until June 2024, Utah Admin. Code R315-310-3(3)(a) cryptically stated that a commercial Class V application must provide the information required by Utah Code § 19-6-108(10), but incorrectly excluded Subsection (11).
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14. At the second meeting on October 27, 2020, NERA presented its Needs
Assessment (defined below) to Director Howard, and he confirmed again that NERA’s
assessment made sense to him and was logical. (PPR Comment at 5; Appendices 11 and 12
thereto.) Three days later, PPR filed its Commercial Application with the exhaustive 149-page
NERA Needs Assessment,5 among many other supporting materials. (PPR Comment at 5; Basis
at 1.) On May 4, 2021, the Division sent PPR a letter confirming that the 2020 Commercial
Application was complete. (PPR Comment at 5 and Appendix 13 thereto.)
SC&A Evaluation of NERA’s Needs Assessment
15. The Director retained SC&A to review NERA’s Needs Assessment. (Basis at 2.)
Neither the Director nor any of the staff of the Director or of SC&A is an economist. (PPR
Comment at 8; Appendix 14 thereto at 5.) SC&A provided the Director with an expansive
explanation of how NERA’s Needs Assessment is based on market analyses rather than a
concept of excess “physical” capacity across an entire region. (See SC&A Evaluation of NERA’s
Needs Assessment at 9-12.) SC&A ignores the economics analyses and contends that there is no
“need” given that there already is more than enough existing “physical” landfill capacity in the
state and region. (PPR Comment at 8; SC&A Reply to NERA Needs Assessment at 24.) SC&A
did not point to any language in Utah Code § 19-6-108(10)-(11) to support considering existing
physical landfill capacity as the sole indicator of need. (PPR Comment at 8; SC&A Reply to
NERA Needs Assessment at 24.)
5 https://lf-public.deq.utah.gov/WebLink/DocView.aspx?id=422840&repo=Public&searchid=4c7c7125-0143-40a4-86ae-3c98c1c7e0f7
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16. On November 21, 2021, NERA submitted a Reply to SC&A’s Response to
NERA’s Needs Assessment, refuting all SC&A’s findings and conclusions. (See NERA’s Reply
to SC&A Evaluation at 1.)
The Director’s Provisional Basis
17. In February 2023, the Director issued his Provisional Statement of Basis -
Intention to Deny PPR’s Class V Landfill Application on grounds that “there is sufficient landfill
capacity at existing landfills within PPR’s self-designated wasteshed to meet the current and
future needs of the State of Utah.” (Provisional Basis at 4.)
PPR Public Comments
18. On March 27, 2023, the Director held a public hearing on the Provisional Basis,
where PPR and its expert NERA gave oral comment opposing and refuting the Provisional Basis.
(See Public Hearing Meeting Minutes and Recording.) PPR and NERA also submitted extensive
written public comments opposing the Provisional Basis on April 8, 2023. (See generally PPR
Comment; NERA Comment.) In their written comments, PPR and NERA opposed the
Provisional Basis on the following grounds:
a. The Director’s Provisional Basis is nonsensical and barred by equitable estoppel;

b. The Director’s interpretation and application of Utah Code § 19-6-108(10)(b)(i) violates the United States Constitution; c. The Director’s interpretation of Utah Code § 19-6-108(10)(b)(i) would be rejected
because it violates the dormant Commerce Clause;
d. NERA’s interpretation of Utah Code § 19-6-108(10)(b)(i) follows rules of construction;
e. The Director’s interpretation of Utah Code § 19-6-108(10)(b)(i) is clearly erroneous;
f. The Provisional Basis was contrary to the Director’s prior practice;
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g. PPR’s Commercial Application satisfies all requirements, and NERA’s findings and
conclusions are uncontroverted that the landfill should be changed to a commercial
landfill; and h. The Provisional Basis misrepresented key elements of NERA’s economic wasteshed analysis.

(See PPR Comment at 3-4; see generally NERA Comment.) Order and Statement of Basis
19. On October 6, 2024, the Director issued the Order denying PPR’s Commercial
Application. (Order at 1.) The Order included the Director’s Statement of Basis (“Basis”) and his
Response to Comments (“Director’s Response”). (Id.) The Director determined that PPR
satisfied all of requirements of Utah Code Ann. § 19-6-108(10), except for Subsection (10)(b)(i),
and neglected to make a determination that PPR met Utah Code § 19-6-108(11) on grounds that
it was “premature” because PPR had failed to satisfy Utah Code § 19-6-108(10)(b)(i). (See
Director’s Response at 38-40; see also Basis at 4-5.) The Director concluded that PPR’s
operation plan had:
a. met all technical requirements for a commercial landfill, and the landfill did not pose a threat to human health or the environment. Utah Admin. Code R315-302, -303, -308, and -310.
b. established the proposed commercial landfill had a proven market of
nonhazardous solid waste. Utah Code § 19-6-108(10)(a). c. adequately described the energy and resources recoverable by the commercial landfill. Utah Code § 19-6-108(10)(b)(ii).

d. sufficiently described the reduction of nonhazardous solid waste management methods made possible by the proposed commercial landfill. Utah Code § 19-6-108(10)(b)(iii).
e. described its limited compliance history. Utah Code § 19-6-108(10)(c).

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FACTS
The Landfill
20. PPR spent nearly $30 million to build the first cell of the landfill in 2017. (See
PPR Comment at 4; Appendix 3 thereto.)

The landfill is located on the southwestern tip of the Promontory Point Peninsula of the Great
Salt Lake within Box Elder County, Utah. (Basis at 1.) There is no dispute that the landfill is
safe for disposing of municipal solid waste, and no technical changes are needed to change the
landfill to commercial. (Id. at 2-5.) All that would change is the same type of solid waste could
be imported from out of state. (Id. at 2.)
Commercial Application
21. In 2016, the Utah Legislature passed a joint resolution to change the for-profit in-
state landfill to a commercial regional Class V landfill. (Basis at 2.6) In 2017, PPR filed an
6 The Director erroneously states he “isn’t certain the legislative approval continues to be effective.” (Director Response at 38.) He is wrong; the approval remains effective for two
reasons. First, Utah Code § 19-6-108(c)(i)(B) was amended to protect PPR’s legislative approval
before May 5, 2021 and PPR’s Commercial Application filed before May 5, 2021. The Division issued to PPR a letter dated May 4, 2021 confirming that PPR’s pending Commercial Application was complete. (PPR Comment at 5; Appendix 13 thereto.) Second, the operation
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application with the Director to change the landfill to a commercial landfill, but PPR withdrew
the application in 2018. (Id.) In 2020, PPR filed another Commercial Application, but this time
retained Ph.D. economists from NERA to perform the needs assessment (“Needs Assessment”)
that Utah Code § 19-6-108(10)-(11) required for only a proposed commercial landfill. (Id. at 1.)
Utah Code § 19-6-108(10)-(11)
22. The Commercial Application must satisfy the requirements of Utah Code § 19-6-
108(10)-(11), which provides:
(10) The director may not approve a commercial nonhazardous solid or hazardous waste operation plan that meets the requirements of Subsection (9) unless the operation plan contains the information required by the board,
including:
(a) evidence that the proposed commercial facility has a proven market of nonhazardous solid or hazardous waste, including:
(i) information on the source, quantity, and price charged for treating,
storing, and disposing of potential nonhazardous solid or hazardous waste
in the state and regionally;
(ii) a market analysis of the need for a commercial facility given existing and potential generation of nonhazardous solid or hazardous waste in the state and regionally; and
(iii) a review of other existing and proposed commercial nonhazardous
solid or hazardous waste facilities regionally and nationally that would compete for the treatment, storage, or disposal of the nonhazardous solid or hazardous waste;
(b) a description of the public benefits of the proposed facility, including:
(i) the need in the state for the additional capacity for the management
of nonhazardous solid or hazardous waste;
(ii) the energy and resources recoverable by the proposed facility;

plan of the Commercial Application and the withdrawn application are identical to convert the existing Class I landfill to commercial. No technical changes to the landfill are needed. (Basis at 2.)
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(iii) the reduction of nonhazardous solid or hazardous waste
management methods, that are less suitable for the environment, that
would be made possible by the proposed facility; and
(iv) whether any other available site or method for the management of hazardous waste would be less detrimental to the public health or safety or to the quality of the environment; and
(c) compliance history of an owner or operator of a proposed commercial
nonhazardous solid or hazardous waste treatment, storage, or disposal facility, that may be applied by the director in a nonhazardous solid or hazardous waste operation plan decision, including any plan conditions.
(11) The director may not approve a commercial nonhazardous solid or
hazardous waste facility operation plan unless based on the application, and in
addition to the determination required in Subsections (9) and (10), the director determines that:
(a) the probable beneficial environmental effect of the facility to the state outweighs the probable adverse environmental effect; and

(b) there is a need for the facility to serve industry within the state. 23. The Director determined that PPR’s Commercial Application satisfied all
requirements under Subsection (10), except for Subsection (10)(b)(i). The Director interpreted
Section 19-6-108(10)(b)(i) to mean need in the state for additional physical airspace capacity.
(Basis at 5-7; Director’s Response at 38-40.)
24. The Director declined to make a determination that PPR met Utah Code § 19-6-
108(11) on grounds that it was “premature” because PPR had failed to satisfy Utah Code § 19-6-
108(10)(b)(i). (See Director’s Response at 40.)
The Director’s Past Interpretation and Application of Section 19-6-108(10)-(11) 25. Past Directors interpreted and applied Section 19-6-108(10)-(11) consistent with
PPR’s interpretation. (PPR Comment at 17-18.)
26. Consistent with Director Howard’s direction to NERA, after Utah Code § 19-6-
108 was amended to require the market needs assessment, the then-Director approved two other
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commercial landfills, the Intermountain Regional Landfill and the Wasatch Regional Landfill.
(PPR Comment at 5; NERA’s Reply to SC&A Evaluation at 5.) The then-Director approved both
commercial landfills even though ECDC had over 1,400 years of capacity and was already
operating in the same region. (PPR Comment at 5; NERA’s Reply to SC&A Evaluation at 5.)
The needs assessment submissions of both of these landfills identified locational/economic need
for the new commercial landfills. (PPR Comment at 5; NERA’s Reply to SC&A Evaluation at
5.) Both commercial landfills were approved despite ECDC’s preexisting massive commercial
landfill capacity. (PPR Comment at 5.)
27. Consistent with Director Howard’s instruction that NERA consider ECDC’s
market and provide a regional market need assessment, in an undated draft memo to Governor
Cox, current Director Hansen acknowledged his Division’s prior practice of reviewing market
need for new commercial landfills: “An anticipated focus of such a challenge could include
questions on how the Division has handled its review of PPR’s application in comparison to the
Division’s historical handling of commercial landfill applications.” (PPR Comment at 5-6 and
Appendix 15 thereto) (emphasis added).)
NERA’s Needs Assessment
28. To satisfy Utah Code § 19-6-108(10)-(11), consistent with the former Director’s
instruction and the Director’s past practice on commercial landfill applications, NERA’s Ph.D.
economists performed a market analysis for two key waste streams both of which already have a
substantial proven market for disposal in Utah: municipal solid wastes (MSW) and
contaminated soils from California that are considered nonhazardous solid waste in Utah.
(NERA Comment at 13.) The Commercial Application satisfies all requirements under
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Subsections (10) and (11), as supported by NERA’s expert findings and opinions that are
uncontroverted in the record. (Id. at 12-19.)
29. Notwithstanding the agency’s discretion to interpret its statutes, Utah Code
§ 63G-4-403(4)(h)(iii) authorizes a court to grant relief when an agency action is “contrary to the
agency’s prior practice, unless the agency justifies the inconsistency by giving facts and reasons
that demonstrate a fair and rational basis for the inconsistency.” Thus, despite the agency’s
discretion, it cannot apply statutes inconsistently without a rational explanation, which it has not
done here.
i. Subsection (10)(a) and (b)
30. With respect to Subsections (10)(a) and (b), NERA demonstrated that PPR’s
commercial landfill would be the least-cost provider of disposal services for MSW and
California soils relative to any of the commercial landfills regionally and nationally that would
compete for each of those waste streams, respectively. (Id. at 13 and 15-17.) PPR’s ability to
compete in these markets is based on the landfill’s location compared to each of the potentially
competing alternative commercial landfills. PPR’s commercial landfill could provide a lower
total-cost-of-disposal service even without offering lower tipping fees than competing landfills.
(Id. at 13.)
31. NERA’s detailed transportation cost analysis demonstrates that PPR’s commercial
landfill would be the least-cost commercial landfill for MSW throughout a broad region that
extends southward along the east of the Great Salt Lake nearly to Ogden, UT and northward
across at least seven counties in southwestern Idaho. (Id. at 14.) PPR’s market region
encompasses the Utah counties of Box Elder, Weber, and Cache. (Id.)
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32. Based on the location and high quality of PPR’s landfill, NERA found the
following economic and environmental public benefits to the state from changing the PPR
landfill to commercial:
Economic Public Benefits
• A reduced total-cost-of-disposal for municipal solid waste (MSW) disposers in a large region including much of northern Utah, plus indirect savings through
competition.
o Up to $793,000 in direct savings annually for commercial MSW generated in Utah. o Up to $676,000 in direct savings annually for residential MSW generated in Utah.

• Macroeconomic benefits to Utah from the waste streams that would flow to PPR, with each increment of 100,000 tons that PPL imports into the state benefitting the economy of Utah by:
o 30 to 40 additional jobs.
o $5.5 to $6.1 million dollars of annual output.
o $200,000 in revenue to Box Elder County. o $21,000 in revenue to the State of Utah.
(Id. at 2.)

• There will be need emerging over a longer period of time in those three counties [Box Elder, Weber, and Cache] as they consider how to handle their limited residential MSW landfill capacity. That also would have financial value on the
order of tens of thousands of dollars per year, once it becomes a fact. (Id. at 16.) Environmental Public Benefits
• Providing access to a state-of-the-art landfill meeting modern standards of
environmental protection to communities and businesses in northern Utah (and southern Idaho), some of which currently rely on older, less environmentally sound landfills. For example, Box Elder County’s Little Mountain Landfill is unlined. (Id. at 3.)

• PPR’s permit agreements with Box Elder County for minimizing dust from the landfill. (Id. at 17.)
• The route for transporting wastes to PPR’s landfill that are within its economic wasteshed will be on less-congested freeways than if those same wastes were to be transported to any of the landfills on the south side of the Great Salt Lake. (Id.)
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• A net reduction in greenhouse gases and criteria pollutants by adding PPR’s
commercial landfill as another disposal option, and a net reduction in rail emissions from hauling excavated wastes from northern California to PPR’s landfill rather than at ECDC because the approximately 200 mile in-state rail transport segment from PPR’s landfill to ECDC could be eliminated. (Id.)

• Plans for installing a solar microgrid to meeting facility power needs and installation of a gas-collection system to capture methane, as well as its ability to use parts of the site to segregate waste, stockpile inert materials for beneficial reuse
and implement waste-processing technologies to recover embodied energy. (Id. at
16.) 33. The Director has not refuted any of NERA’s calculations and findings supporting
these economic and environmental public benefits. (See generally, Order, Basis, and Director’s
Response.)
ii. Subsection 11
34. With respect to Subsection (11), although the Director erroneously did not make a
determination on Subsection (11), PPR’s Commercial Application satisfies Subsection (11), as
supported by NERA’s expert findings. (Director’s Response at 40.)
35. Subsection 11(a) requires the Director to determine that the probable beneficial
environmental effect of the PPR commercial landfill outweighs its probable adverse
environmental effect. NERA identified several probable beneficial environmental effects from
changing PPR’s landfill to commercial. (NERA Comment at 3, 16, 17.) Regarding the probable
adverse environmental effect, there is none. (Basis at 2-5.) The probable beneficial
environmental effect of changing PPR’s landfill to commercial is diverting Utah waste to a state-
of-the-art, high-quality landfill away from less environmentally protective landfills in northern
Utah (and southern Idaho) like the unlined Box Elder County’s landfill. (NERA Comment at 3.)
Another effect is air quality benefits because of the location of PPR’s landfill. (Id. at 17.) There
is no probable adverse environmental effect of PPR’s landfill. (Basis at 2-5; PPR Comment at
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21.) The landfill has a state-of-the-art design that does not need to be changed to become a
commercial landfill. (PPR Comment at 21.) In responding to public comments raising concerns
about groundwater contamination; impacts to wildlife, air quality, Great Salt Lake ecosystem,
public health; accepting out-of-state and hazardous waste, the Director found no basis because he
correctly found that the landfill meets all of the regulatory technical requirements. (See
Director’s Response at 4-6.)
36. Subsection 11(b) requires a determination that there is a need for PPR’s
commercial landfill to serve industry in the state. Based on the guidance from Division Director
Howard, NERA interpreted the term “industry” in this provision to refer broadly to businesses,
state and local governments, and residents of the state, rather than narrowly as “industrial
activities” only. (NERA Comment at 18; PPR Comment at 21 and Appendix 12 thereto.) In
giving that guidance, Director Howard explained that he perceived the purpose of Subsection
11(b) to be to avoid permitting a commercial landfill that would do nothing but dispose of out-
of-state wastes. (NERA Comment at 18; PPR Comment at 21 and Appendix 12 thereto.)
37. As is clear from the multiple economic and environmental public benefits
identified by NERA, there is no reason to conclude that the landfill’s purpose would be to accept
only out-of-state wastes. (NERA Comment at 18; PPR Comment at 21.) The NERA analyses
demonstrate that there are clear economic and environmental public benefits needed by Utah
businesses, residents, and local governments. (NERA Comment at 18; PPR Comment at 21.) As
additional evidence that there is a need for the PPR commercial landfill to serve the industry in
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the state, PPR and three northern Utah businesses have entered into Master Disposal Services
Agreements that will take effect upon the approval of the Commercial Application.7
DEMONSTRATION THAT THE DIRECTOR CLEARLY ERRED
38. The Executive Director must vacate the Order, remand the matter back to the
Director, and order the Director to approve PPR’s Commercial Application because: (i) the
Director’s interpretation of Utah Code § 19-6-108(10)(b)(i) and application to PPR violates the
dormant Commerce Clause of the United States Constitution, (ii) the Director’s interpretation of
Utah Code § 19-6-108(10)(b)(i) does not properly apply rules of statutory construction and is
clearly erroneous, (iii) it was clearly erroneous for the Director to issue the Order without a
determination on whether PPR met Section 19-6-108(11), and (iv) PPR has been substantially
prejudiced by the Director’s clear error because PPR would have received the commercial
landfill permit but for the Director’s erroneous interpretation of Section 19-6-108(10) and
application to PPR and his erroneously failing to make a determination under Subsection (11).
I. The Director’s Interpretation and Application of Utah Code § 19-6-108(10)(b)(i)
Violates the Dormant Commerce Clause. 39. “Under the canon of constitutional avoidance, courts may reject one of two
plausible constructions of a statute on the ground that it would raise grave doubts as to the
statute's constitutionality.” Castro v. Lemus, 2019 UT 71, ¶ 54, 456 P.3d 750 (cleaned up).
“Thus, in applying the canon of constitutional avoidance, [courts] presume that the legislature
either prefers not to press the limits of the Constitution in its statutes, or it prefers a narrowed
(and constitutional) version of its statutes to a statute completely stricken by the courts.” Id.
(cleaned up). The Director’s interpretation of Utah Code § 19-6-108(10)(b)(i), as applied to PPR
7 Simultaneously with the filing of this Petition, PPR has filed a Motion to Supplement the Record with these waste contracts.
19
by the Director,8 violates the dormant Commerce Clause. Stated differently, by rejecting PPR’s
application based on an interpretation of Subsection 10(b)(i) that only considers only physical
airspace capacity, without regard to location, landfill quality, or cost-of-disposal, the Director
has imposed a substantial burden on interstate commerce that does not advance putative local
benefits.
40. The United States Constitution gives Congress the exclusive power to regulate
interstate commerce (U.S. CONST. art. 1, § 8, cl. 3) and “prohibits state laws that unduly restrict
interstate commerce.” Tennessee Wine and Spirits Retailers Ass’n v. Thomas, 588 U.S. 504, 514
(2019) (cleaned up); see also Wendover City v. W. Wendover City, 404 F. Supp. 2d 1324, 1328
(D. Utah 2005) (“While this provision is generally considered ‘a grant of regulatory power to
Congress, the [dormant Commerce] Clause has long been understood to have a ‘negative’ aspect
that denies the States the power unjustifiably to discriminate against or burden interstate flow
of articles of commerce.”) (quoting Oregon Waste Sys., Inc. v. Dept. of Envt’l Quality, 511 U.S.
93, 98 (1994) (emphasis added)). And the Supreme Court has made clear that solid waste, “even
if it has no value, is an article of commerce.” Fort Gratiot Sanitary Landfill, Inc. v. Michigan
Dept. of Nat. Resources, 504 U.S. 353, 359 (1992).
41. Moreover, “nondiscriminatory regulations” can violate the dormant Commerce
Clause when applied in a manner that the “burden imposed on [interstate] commerce is clearly
excessive in relation to the putative local benefits.” Wendover City v. W. Wendover City, 404 F.
Supp. 2d 1324, 1329 (D. Utah 2005) (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142
(1970)); see also Island Silver & Spice, Inc. v. Islamorada, 542 F.3d 844, 846 (11th Cir. 2008)
8 As the Director notes, PPR is not arguing that Utah Code § 19-6-108(10)(b)(i) is facially discriminatory, as it applies equally to in-state and out-of-state business. (See Basis at 32).
20
(“If a regulation has only indirect effects on interstate commerce, we examine whether the
State’s interest is legitimate and whether the burden on interstate commerce clearly exceeds the
local benefits.”) (cleaned up). Under Pike, courts must evaluate: “(1) the nature of the putative
local benefits advanced by the Ordinance; (2) the burden the Ordinance imposes on interstate
commerce; (3) whether the burden is ‘clearly excessive in relation to’ the local benefits; and
(4) whether the local interests can be promoted as well with a lesser impact on interstate
commerce.” Blue Circle Cement, Inc. v. Bd. of Cnty. Comm'rs of Cnty. of Rogers, 27 F.3d 1499,
1512 (10th Cir. 1994) (referring to and quoting Pike); see also Nat'l Pork Producers Council v.
Ross, 598 U.S. 356, 383 (2023) (“Nat’l Pork”) (noting that Pike “requires a plaintiff to plead
facts plausibly showing that a challenged law imposes ‘substantial burdens’ on interstate
commerce before a court may assess the law’s competing benefits or weigh the two sides against
each other.”) (emphasis in original).
42. Here, the Director (i) ignored facts and law that demonstrates its interpretation
and application of Subsection 10(b)(i) imposes a substantial burden on interstate commerce, and
(ii) failed to identify putative local benefits advanced by refusing PPR a commercial permit that
justify imposing the substantial burden on interstate commerce.
A. Denying The Commercial Permit Imposes A Substantial Burden On Interstate Commerce. 43. “Pike requires a plaintiff to plead facts plausibly showing that a challenged law
imposes ‘substantial burdens’ on interstate commerce before a court may assess the law’s
competing benefits or weigh the two sides against each other.” Nat’l Pork, 598 U.S. at 383
(emphasis in original). PPR has met this burden. However, the Director ignored critical factual
evidence and legal arguments to erroneously conclude that a substantial burden has not been
shown. (See Director’s Response at 33). Indeed, the Director’s interpretation and application of
21
Subsection 10(b)(i) substantially burdens interstate commerce by preventing competition and
out-of-state customers from disposing of waste at their lowest cost option.
i. Protecting Utah’s incumbent commercial landfills from new competition substantially burdens interstate commerce.

44. Courts have held a statute “greatly impacts interstate commerce [when] it does not
allow for competition from any outside source.” Wendover City, 404 F. Supp. 2d at 1331.
Indeed, local laws that insulate established companies from new competition based on a “need
assessment” for new entrants have been found to violate the dormant Commerce Clause. See,
e.g., H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 545 (1949); Walgreen Co. v. Rullan,
405 F.3d 50, 56 (1st Cir. 2005); Yamaha Motor Corp., v. Jim’s Motorcycle, Inc., 401 F.3d 560,
570-74 (4th Cir. 2005); Fla. Transp. Servs., Inc. v. Miami-Dade Cnty., 703 F.3d 1230 (11th Cir.
2012) (“FTS”).
45. FTS is instructive. There, the Eleventh Circuit Court of Appeals held that “the
County’s stevedore permit ordinance, as applied . . . improperly excluded Florida Transportation
and other stevedores who wished to apply for new permits from the interstate stevedore market
at the Port of Miami, while at the same time providing automatic renewals for the existing and
entrenched stevedores.” FTS, 703 F.3d at 1262. The court held the ordinance failed the “undue
burden test” and, therefore, “violates the dormant Commerce Clause.” Id.; see also Cloverland-
Green Spring Dairies, Inc. v. Penn. Milk Mktg. Bd., 298 F.3d 201, 214 (3d Cir. 2002) (noting
that a statute may be invalid under the dormant Commerce Clause “if it favors only a single or
finite set of businesses”).
46. Similarly, the Director has interpreted the statute to determine that because there
is remaining “physical airspace capacity” at preexisting commercial landfills, new commercial
landfills will not be approved. In other words, a new commercial landfill will not be approved if
22
it would compete with existing commercial landfills. But just as Wendover City, FTS, and the
other case cited herein hold, such a determination by definition imposes a substantial burden on
interstate commerce.
47. The Director’s reliance on Nat’l Pork is not helpful. (Director’s Response at 34).
Importantly, the application of the statute in Nat’l Pork was not anti-competitive. That is, it did
not hold that new pork producers were precluded from operating in California because there was
no more need for pork. Rather, it merely required that all pork producers be governed by the
same requirements if they were to provide pork to California. That is not the case here. It is the
anti-competitive nature of the Director’s application of the statute, coupled with increased costs
to out-of-state customers that creates the substantial burden on interstate commerce.
48. Indeed, as NERA explained, the Director’s interpretation of the statute raises an
anticompetitive barrier to entry for any new commercial landfill that might wish to enter the
market and compete with existing commercial landfills. (See NERA Comment at 4). Moreover,
NERA presented quantitative evidence of the effects of this anticompetitive barrier to enter
interstate commerce. (See NERA Needs Assessment at 22.) For example:
• NERA estimates that if the PPR landfill were granted a commercial Class V
permit, it would produce direct benefits to Idahoan residents and businesses disposing of municipal solid waste of approximately $1.2 million annually by reducing the cost of disposing of that waste (Promontory Point Landfill Class V Permit Needs Assessment Report Volume I, p. 22). This means that the costs
of disposing of municipal solid waste to these Idahoans are increased by $1.2
million annually than they would otherwise be if the PPR commercial permit is granted.
• If the PPR landfill were granted a commercial permit, it would produce benefits
to Idaho waste disposers in the form of competition between landfills on tipping
fees. “Such competitive price pressures will be strongest in the outer portions of the region that we estimate to be PPR’s economic wasteshed,” which includes portions of Idaho. Id. at 23. Under its Class I permit, the PPR landfill cannot currently accept waste from Idaho, so there are no specific examples of competition reducing tipping fees as there are for Utah.
23
• NERA also estimates that if the PPR landfill were granted a commercial permit,
“the benefits to Californians could range from $3 million to $6 million per year” for those seeking to dispose of excavated soils. Id. at 35. This means that the cost of disposing of excavated soil from Northern California are higher by $3 million to $6 million per year than they would be if the PPR landfill was granted
a commercial permit.
• Without the PPR commercial landfill, NERA’s estimate of the costs to out-of-state waste disposers ranges from at least $4.2 million to $7.2 million higher annually than they would if the PPR landfill was granted a commercial permit.
49. NERA has also explained there are other potential interstate waste streams that
have not been analyzed in detail, which also faced increased costs without the PPR commercial
landfill. (Id. at 39-42.) Significantly, the Director has not challenged any of NERA’s estimates.
Instead, unlike the courts who have already determined that preventing competition constitutes a
substantial burden on interstate commerce, the Director wrongfully concludes PPR failed to
show a substantial burden. (Director’s Response at 34.)
50. In short, the Director’s denying PPR commercial status prevents out-of-state
demand for a new northern commercial landfill from being met, and protects incumbent
commercial landfills from facing new competition. This, on its own, creates a substantial burden
on interstate commerce, and PPR has therefore met its burden.
ii. Preventing out-of-state customers from disposing of waste at their
lowest cost option substantially burdens interstate commerce. 51. The Director baldly concludes that his application of Subsection 10(b)(i) “has no
actual effect on out-of-state waste disposers.” (Id.) Yet, the Director offers no substantive
justification for that assertion, which contradicts NERA’s extensive and detailed analysis that
estimates how denying a commercial permit increases disposal costs for out-of-state waste
disposers relative to granting the permit. Additionally, the increase in costs is based on total cost-
of-disposal and not solely on travel distance. NERA did not “allege” out-of-state waste disposers
would face higher costs—this conclusion is the result of a substantive analysis. NERA has
24
analyzed total-cost-of-disposal for out-of-state waste disposers such as MSW disposers in Idaho
and excavated soil disposers in California. Thus, the Director’s criticism that PPR “is not an out-
of-state waste disposer” is irrelevant in determining whether a substantial burden is imposed on
interstate commerce. (See Director’s Response at 34.)
52. The Director either ignored or chose to not refute the extensive evidence NERA
provided to show that by denying PPR a commercial permit, out-of-state customers are unable to
dispose of waste at their lowest cost option. This, by definition, substantially burdens interstate
commerce. The Director claims that this burden is “incomparable” to that identified in Nat’l
Pork (Director’s Response at 34), but the Director does not cite to any threshold amount below
which a burden on interstate commerce can be dismissed as insubstantial. The Director therefore
erred in determining that PPR did not meet its burden in showing the denial of its commercial
permit imposed a substantial burden on interstate commerce.
B. Putative Local Benefits Are Not Being Advanced By Denying The Commercial Application.
53. Once a substantial burden on interstate commerce has been identified, courts
analyze whether putative local benefits are advanced that justify the burden. See Pike, 397 U.S.
at 142 (1970). “The mere incantation of a purpose to promote the public health or safety does not
insulate a state law from Commerce Clause attack. Regulations designed for that salutary
purpose nevertheless may further the purpose so marginally, and interfere with commerce so
substantially, as to be invalid under the Commerce Clause.” See Blue Circle Cement, Inc. v. Bd.
of Cnty. Comm'rs of Cnty. of Rogers, 27 F.3d 1499, 1512 (10th Cir. 1994); see also Wendover
City, 404 F. Supp. 2d at 1327 (finding the alleged putative local benefit of “providing healthy
and safe water to their residents” was not supported by facts to show the “water supply was
somehow unhealthy or unsafe”).
25
54. In Blue Circle, the county argued its ordinance that imposed a substantial burden
on interstate commerce was justified because “the putative local interest . . . is the health and
safety of the County’s residents.” Id. But the evidence before the Court revealed “that the [waste]
that Blue Circle proposes to burn, or the by-products of combustion of such [waste], would not
present any significant health or safety hazard.” Id. at 1513. Accordingly, the court held the
ordinance violated the dormant Commerce Clause.
55. Like the county in Blue Circle, the Director broadly cites “the protection of
human health and the environment” as the alleged local benefit derived from denying the PPR
landfill commercial permit. (Director’s Response at 35.) The Director then states the local
benefits enumerated in Subsection 10 “are within the realm of Utah’s police powers and clearly
outweigh the hypothetical, unsupported, and likely implausible, increase in transportation cost
for out-of-state waste disposers alleged by PPR.” (Id.) However, the Director has cited no
evidence that such benefits are actually advanced by denying the PPR landfill a commercial
permit. Indeed, the Director concedes PPR’s landfill meets all the necessary standards to become
a commercial landfill and does not pose a risk to the environment or public health. (Basis at 2-5.)
The Director also fails to provide a basis to conclude NERA’s estimates of the burden on
interstate commerce caused by denying the PPR landfill a commercial permit are “likely
implausible.” (Director’s Response at 35.)
56. Accordingly, there is no benefit derived that “will benefit, rather than degrade,
human health and the environment” by denying the commercial permit. (See Director’s Response
at 35.) Ironically, the Director also raises concerns about how “an orphaned [PPR] facility would
harm human health and the environment.” (Id.) But, based on NERA’s uncontroverted evidence
of the demand for the commercial landfill, the existing PPR landfill is far more likely to become
26
orphaned remaining as an in-state Class I landfill, undermining the Director’s own argument.
Further, the Director fails to refute or challenge NERA’s findings that there exists a market of
nonhazardous solid waste. See Utah Code § 19-6-108(10)(a).
57. The Director has merely restated enumerated benefits from the statute. This is
woefully inadequate. Fatal to the Director’s Order is that he did not identify any facts or basis to
support that denying PPR a commercial permit somehow advances or serves putative local
benefits, let alone justifies imposing the substantial burden on interstate commerce that has
previously been addressed.
58. Moreover, the Director dismisses PPR’s evidence that changing PPR’s landfill to
commercial provides actual putative local benefits. NERA identified multiple economic and
environmental benefits that PPR’s commercial landfill would provide to the state. See supra,
¶ 32. The Director does not refute NERA’s calculations and findings supporting these benefits.
See id.
59. PPR therefore has established substantial burdens on interstate commerce, and the
Director has failed to identify putative local benefits that justify imposing those burdens. And so,
the Director’s interpretation and application of Subsection 10(b)(i) violates the dormant
Commerce Clause. The Executive Director must reject the Director’s unconstitutional
construction of Subsection 10(b)(i) and accept PPR’s interpretation that the Utah Benefits show
there is a need in the state for the additional commercial capacity for waste disposal.
II. The Director’s Interpretation of Utah Code § 19-6-108(10)(b)(i) is Clearly Erroneous. 60. The Director did not properly apply rules of statutory construction, so his
interpretation of Utah Code § 19-6-108(10)(b)(i) is clearly erroneous. He correctly concluded
27
that PPR met all of requirements of Section 19-6-108(10), but he is mistaken that PPR did not
meet Section 19-108-10(b)(i).
61. Courts “will not infer substantive terms into the text that are not already there.
Rather the interpretation must be based on the language used, and we have no power to rewrite
the statute to conform to an intention not expressed.” Bryner v. Cardon Outreach, LLC, 2018
UT 52, ¶ 21, 428 P.3d 1096 (emphasis added). When interpreting a statute, the “primary
objective is to ascertain the intent of the legislature.” ICS Corr., Inc. v. Utah Procurement Pol'y
Bd., 2022 UT 24, ¶ 20, 513 P.3d, 677. “Because the plain language of the statute offers the best
evidence of legislative intent, [courts] begin with the statutory text.” Id. (citation omitted). We
must review “the plain language of the statute as a whole, and interpret its provisions in harmony
with other statutes in the same chapter and related chapters.” State v. Barrett, 2005 UT 88, ¶ 29,
127 P.3d 682 (cleaned up). Courts “presume that the legislature used each word advisedly.”
Turner v. Staker & Parson Companies, 2012 UT 30, ¶ 12, 284 P.3d 600, 603. “Wherever
possible, we give effect to every word of a statute, avoiding “‘[a]ny interpretation which renders
parts or words in a statute inoperative or superfluous.’” Id. (citation omitted). “Words and
phrases are presumed to have been used according to their plain, natural, and common import
and usage of the language, unless obviously used in a technical sense.” Hayes v. Intermountain
GeoEnvironmental Servs., Inc., 2021 UT 62, ¶ 24, 498 P.3d 435 (emphasis added). In the latter
instance, “where the legislature has used technical words in a given statutory provision . . . , it is
proper to explain them by reference to the art or science to which they are appropriate.” Id.
(cleaned up). Likewise, “words and phrases are to be construed according to the context and the
approved usage of the language; but technical words and phrases, and such others as have
28
acquired a peculiar and appropriate meaning in law, or are defined by statute, are to be construed
according to such peculiar and appropriate meaning or definition.” Utah Code § 68-3-11.
62. Utah Code § 19-6-108(10) applies to all proposed commercial landfills:
(10) The director may not approve a commercial nonhazardous solid or hazardous
waste operation plan that meets the requirements of Subsection (9) unless the operation plan contains the information required by the board, including: (a) evidence that the proposed commercial facility has a proven market of
nonhazardous solid or hazardous waste, including:
(i) information on the source, quantity, and price charged for treating, storing, and disposing of potential nonhazardous solid or hazardous waste in the state and regionally;

(ii) a market analysis of the need for a commercial facility given existing and potential generation of nonhazardous solid or hazardous waste in the state and regionally; and
(iii) a review of other existing and proposed commercial nonhazardous
solid or hazardous waste facilities regionally and nationally that would compete for the treatment, storage, or disposal of the nonhazardous solid or hazardous waste; . . . ” Utah Code § 19-6-108(10)(a) (emphasis added).

(b) a description of the public benefits of the proposed facility, including:
(i) the need in the state for the additional capacity for the management of nonhazardous solid or hazardous waste;
(ii) the energy and resources recoverable by the proposed facility;
(iii) the reduction of nonhazardous solid or hazardous waste
management methods, that are less suitable for the environment, that would be made possible by the proposed facility; and
whether any other available site or method for the management of hazardous waste would be less detrimental to the public health or
safety or to the quality of the environment. (Emphasis added.)

29
A. The Director’s Interpretation Is Clearly Erroneous Because He Did Not Properly Apply Rules of Construction to Subsection (10)(b)(i).
63. The Director argues that his interpretation of Subsection (10)(b)(i) follows rules
of construction but ironically cites only to one rule of construction and sidesteps9 all the other
rules. The Director improperly added the substantive terms “physical airspace” into Subsection
10(b)(i), so it would read, “the need in the state for the additional [physical airspace] capacity.”
(Basis at 5.) But the Director also narrowly interprets “need” to exclude consideration of
multiple public benefits from the proposed commercial landfill’s location, high quality, and cost
of disposal. Where in the statute is the Director justification for this redefinition? The Director
also erroneously determined that the physical airspace comprises both commercial and non-
commercial landfills, but Subsections (10) and (11) do not apply to non-commercial landfills.
(Id. at 6.) Because the non-commercial landfill space in northern Utah totals 144 years, he
erroneously concluded PPR did not meet Subsection 10(b)(i). The Director claims this is a
“literal” interpretation, but the Legislature intended something different from the language they
used.
64. The Director’s focus on the volume of existing physical capacity is nonsensical.
PPR’s landfill already exists. It already is part of the volume of physical airspace of Utah.
Changing PPR’s landfill to commercial does not add to the volume of physical airspace. The
Director concedes there currently is no commercial capacity in the northern Utah wasteshed.
(Basis at 6-7.) So when he issues PPR a commercial permit, he just changes PPR’s existing
volume to commercial. The Director glaringly does not confront these facts.
9 Cf. “The Sidestep” – Best Little Whorehouse in Texas (Charles Durning) https://www.youtube.com/watch?v=Emc1M5F9I-E.
30
65. PPR’s interpretation of Utah Code § 19-6-108 (10)(b)(i) follows rules of
construction and is the only plausible interpretation. Subsection 10(b) requires “a description of
public benefits of the proposed facility,” which facility here is proposing to become commercial.
Subsection 10(b)(i)’s clause “for the additional capacity” is referring to the proposed additional
commercial capacity. The Director contradicts himself and even concedes this point. (See
Director’s Response at 13 (“Unlike Utah Code § 19-6-108(10)(a)(iii), Utah Code § 19-6-
108(10)(b)(i) requires PPR to show that there is a need for additional commercial landfill
capacity in the State of Utah.”); see also id. at 24 (“PPR has not demonstrated a need within the
state of Utah for additional commercial capacity to landfill solid waste.”).) The Director is
incorrect that Subsection 10(b)(i) considers existing non-commercial capacity.
66. The Director improperly interprets narrowly the term “need” in Subsection
10(b)(i) to exclude public benefits based on location, landfill quality, and cost-of-disposal. The
rules of construction require Section 10 to be construed as a whole, Subsections (a) and (b) must
be harmonized, and no new terms should be inferred. Further, the technical words in Section 10
should be explained by reference to the art or science of economics to which they are
appropriate. The terms “market,” “price,” “market analysis of the need,” “commercial” and
“waste facilities . . . that would compete” in Subsection 10(a) require a market-oriented analysis.
(NERA’s Reply to SC&A Evaluation at 2.) The terms “public benefits” likewise are economics
terms referring to an addition to societal well-being or an economic gain from the new
commercial landfill. (Id. at 3.) According to NERA, “public benefits” refers to the aggregate
combination of added forms of societal welfare from having a new commercial landfill. (Id.)
Collectively, these are not engineering terms. And the term “including” used in Subsection
31
10(b)(i) means that the list of public benefits from PPR’s commercial landfill in Subsections (i)-
(iv) are not exclusive.
67. The “need . . . for the additional capacity” is referring back to the “need”
identified in Subsection 10(a)(ii), the “market analysis of the need for” the new commercial
landfill. This correct interpretation of Subsection (b)(i) renders operable the market need and
competition analyses required by Subsections (a)(ii) and (a)(iii). Applying the rules of
construction, Subsection 10(b)(i) requires an analysis of the market need in the state for the
additional commercial capacity for waste management. The record confirms there is a market
need for changing the PPR landfill to commercial, and PPR meets all of the commercial statutory
requirements.
68. The Director, on the other hand, is misinterpreting “need” to exclude public
benefits based on the landfill’s location, high-quality, and cost-of-disposal.
B. The Director’s Interpretation Is Clearly Erroneous Because It Renders Subsection 10(a)(iii) Inoperative and Superfluous.
69. The Director’s interpretation of Subsection (10(b)(i) renders inoperative
Subsection 10(a)(iii), which calls for a review of competing “commercial” landfills. But there is
no reason to review competition among commercial landfills if a potentially competing landfill
cannot be approved on grounds there is too much preexisting physical landfill airspace. The
ECDC commercial landfill has over 1,400 years of capacity remaining (See supra, ¶ 26.) The
Director contends that he “could reasonably interpret Utah Code §19-6-108(10)(b)(i) to mean
that an aspiring commercial solid waste landfill is required to total all the landfill physical
capacity in the state, determine how many years it will take to use up that physical space, and
report whether there is need in Utah for more landfill capacity.” (Basis at 11.) And so the
32
Director believes that ECDC alone is adequate to serve the needs of the state, but his thinking
ignores the need for location, as explained by NERA:
Consider a town with an apartment complex that has a dumpster available to its residents, the capacity of which goes only half used. Now consider
what would make sense if another apartment complex were built in a
location that is a 10-minute drive away. Residents of the second complex will also need a dumpster for the disposal of their wastes. No one would consider it a reasonable stance for the town (or the apartment building owners) to suggest that there is already more than enough dumpster capacity
at the apartment complex 10 minutes away to serve all of the needs of the
residents of the second complex. Their “need” is for locationally convenient dumpster capacity and that would mean adding a second dumpster.
(NERA’s Reply to SC&A Evaluation at 4.)
70. PPR has demonstrated the need for additional high-quality, environmentally
protective, commercial landfill capacity at the PPR location. The Director “believes he has the
authority . . . to evaluate the need for physical landfill capacity on a smaller scale, rather than the
entire State of Utah.” (Basis at 11.) This assertion exposes the Director’s admission that the
location of the landfill capacity matters. The Director is interpreting “need” to mean nothing but
physical capacity. This is overly simplistic.
71. The “need” for a commercial landfill depends on both its location and its quality.
The Director’s erroneous interpretation led him to conclude that the “Little Mountain Landfill is
one hour closer to most of the populated areas of Box Elder County than the [PPR] facility,
making the Little Mountain Landfill the closer option.” (Basis at 5.) But he misses that this
“closer” landfill is unlined and less environmentally protective than PPR’s landfill. Further, the
Director’s consideration of travel time is a simplistic version of NERA’s total-cost-of-disposal
analysis, which is a market analysis. Subsection (10)(a)(iii) calls for a market analysis limited to
commercial landfills.
33
72. The Director’s contradiction is one that he cannot explain. The rules of
construction require him to presume that the legislature used each word advisedly. Does the
Director really believe there should be two different market analyses? Why would the
Legislature call for a market analysis limited to commercial landfills in Subsection (10)(a)(iii),
but then call for the consideration of non-commercial landfills in Subsection (10)(b)(i)? The
Director does not explain this contradiction or provide a basis to support considering different
types of landfills in Subsections (10)(a)(iii) and (10)(b)(i), respectively.
C. The Director’s Interpretation Is Clearly Erroneous Because He Dismisses The Public Benefits Demonstrating The Need In Utah For Approving PPR’s Additional Commercial Capacity.
73. The Director’s attempt to refute the public benefits identified by NERA is clearly
erroneous. The Director’s confusion is explained by him and his experts being engineering and
environmental specialists, not PhD economists. See e.g., King v. Burwell, 576 U.S. 473, 486
(2015) (in Affordable Care Act case, holding the IRS had “no expertise in crafting health
insurance policy.”). The Director listed only four public benefits identified by NERA but
described them this way:
(1) there is current need among commercial MSW disposers in three Utah counties
that has a financial value to them and their customers; (2) there will be need
emerging over a longer period of time in those three counties as they consider how to handle their residential MSW landfill capacity limits, which would also have financial value; (3) there is need for more conveniently located modem commercial and residential waste disposal option across six counties in Idaho; and ( 4) there is
a need for lower cost disposal options among excavated soil waste disposers in
California. The Director categorically disagrees with NERA's findings. (Director’s Response at 39 (cleaned up).)
74. The Director asserts Findings 1 and 2 are refuted by his Basis, but that is clearly
erroneous. He incorrectly asserts on one hand, “[a]s the Statement of Basis describes, there is
sufficient commercial landfill capacity within PPR’s Utah wasteshed. The commercial capacity
34
available within PPR’s Utah Wasteshed is as much as 144 years.” (Id.) But on the other hand, the
Basis finds, “[w]ithin the Utah wasteshed . . . there are no commercial facilities and there are
four publicly owned facilities” with a “total capacity of 144 years.” (Basis at 6-7.)10 Which one
is it? This conundrum frames the Director’s fundamental clear error of considering physical
capacity to be commercial capacity.
75. The Director next fails to reconcile the fact that PPR’s landfill already exists and
is part of the northern Utah physical airspace capacity. (See Director’s Response at 39). If the
Director is interpreting Subsection 10(b)(i) to mean the need for physical airspace, then that need
was determined when the Director approved PPR’s Class I landfill two decades ago. There is no
dispute that “Subsection 19-6-108(b)(i) applies to commercial facilities, not noncommercial
facilities.” (Id.) Likewise, the “need” is for additional commercial, not noncommercial and
commercial or physical airspace capacity.
76. The Director claims Findings 3 and 4 “fail to demonstrate the need in the state for
additional capacity,” but that is clearly erroneous because the Director does not confront the
following emphasized public benefits to Utah found by NERA:
• Increased competition among commercial landfills for municipal solid waste
(MSW) disposal services, leading to reduced total-cost-of-disposal for waste disposers in a large region covering much of northern Utah and southern Idaho. These benefits to Utah are both direct (reduced MSW disposal costs for northern Utah) and indirect (as imported MSW from Idaho will help reduce
PPR’s average cost per ton that it landfills, and this cost reduction will be passed
along to both in-state and out-of-state waste disposers and their customers. (Reply to Statement of Basis: Intention to Deny Class V Landfill Application, at 1.) (Emphasis added.)
• Providing access to a landfill meeting modern standards of environmental protection to communities and businesses in northern Utah (and southern
10 Even this assertion is misleading because at the current waste disposal rates in nine years the Logan City-Cache County landfill capacity will be exhausted, in fifteen years two of the four landfills will be out of capacity, and in 36 years, three of the four landfills will be out of capacity.
35
Idaho), some of which currently rely on older, less environmentally sound
landfills. For example, Box Elder County’s Little Mountain Landfill is
unlined. (Id.) (Emphasis added.)
77. The Director’s conclusion on Finding 4 likewise is clearly erroneous because he
fails to acknowledge the public benefits to Utah from PPR’s disposing of California waste in its
commercial landfill:
The ability to efficiently dispose of nonhazardous waste from other states (e.g., California excavated soils), allowing PPR to operate at scale and reducing the
average cost per ton that PPR landfills. Again, this benefits Utah by allowing PPR
to pass along cost reductions to in-state customers as well as to the out-of-state waste disposers and their customers. (Id.) (Emphasis added.) 78. The Director’s failure to acknowledge these additional multiple other economic
and environmental public benefits identified by NERA supporting the need in Utah for PPR’s
commercial landfill is clearly erroneous:
Market Public Benefits
• Macroeconomic benefits to Utah from the waste streams that would flow to PPR, with each increment of 100,000 tons that PPL imports into the state benefitting
the economy of Utah by:

o 30 to 40 additional jobs. o $5.5 to $6.1 million dollars of annual output. o $200,000 in revenue to Box Elder County.
o $21,000 in revenue to the State of Utah.
(See NERA’s Reply to SC&A Evaluation at 2.) (Emphasis added.) Environmental Public Benefits

• PPR’s permit agreements with Box Elder County for minimizing dust from the landfill. (Id. at 17.)
• The route for transporting wastes to PPR’s landfill that are within its economic wasteshed will be on less-congested freeways than if those same wastes were to be transported to any of the landfills on the south side of the Great Salt Lake. (Id.)
• A net reduction in greenhouse gases and criteria pollutants by adding PPR’s commercial landfill as another disposal option, and a net reduction in rail
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emissions from hauling excavated wastes from northern California to PPR’s
landfill rather than at ECDC because the approximately 200 mile in-state rail
transport segment from PPR’s landfill to ECDC could be eliminated. (Id.) 79. The Director’s Order is erroneous. The public benefits identified by NERA show
the need in the state for PPR’s commercial landfill. The Director is denying northern Utahans
(and southern Idahoans) all of these many economic and environmental benefits. All of these
public benefits result from the location, high quality, and low cost of disposal of PPR’s landfill
as commercial.
D. The Legislative History Behind Utah Code § 19-6-108 is Irrelevant.
80. The Director argues the legislative history behind Utah Code § 19-6-108 does not
support NERA’s proposition that “‘public benefit’ should be evaluated as an economics-based
concept.” (Director’s Response at 10.) Legislative history of Utah Code § 19-6-108(10) is
irrelevant because the statute is unambiguous. Zilleruelo v. Commodity Transporters, Inc., 2022
UT 1, ¶ 31, 506 P.3d 509 (“It is elementary that we do not seek guidance from legislative history
and relevant policy considerations when the language of the statute is clear and unambiguous.
Where statutory language is plain and unambiguous, we will look no further.”). Moreover, “[a]
statute susceptible to competing interpretations may nevertheless be unambiguous if the text of
the act as a whole, in light of related statutory provisions, makes all but one of those meanings
implausible.” Ho v. Dep't of Com., Div. of Occupational & Pro. Licensing, 2023 UT App 87,
¶ 28, 534 P.3d 1150. Importantly here, the Director never argues the statute is ambiguous—a
prerequisite to analyzing legislative history.
81. After properly applying the rules of statutory construction, PPR’s interpretation of
Subsection 10(b)(i) is the only plausible interpretation because the Director’s construction is
37
unconstitutional and violates rules of statutory construction. Hence, Subsection 10(b)(i) is
unambiguous.
82. In any event, the Legislative history of Subsection 10(b)(i) is not helpful. (See
Declaration of Lauren Chauncey, attached as Exhibit 1 to the Motion to Supplement the Record
filed contemporaneously herewith.)
E. The Director’s Past Approvals of Commercial Landfills Supports PPR’s Interpretation of Subsection 10(b)(i).
83. The Director’s approvals of two previously proposed commercial landfills are
consistent with PPR’s interpretation of Subsection 10(b)(i), and the Director fails to refute this.
84. Consistent with former Director Howard’s direction to NERA, after Utah Code
§ 19-6-108 was amended to require the market needs assessment, the Director approved two
other commercial landfills, Intermountain Regional Landfill and the Wasatch Regional Landfill.
(NERA’s Reply to SC&A Evaluation, Appendix 14 at 5.) The Director approved both of these
commercial landfills even though ECDC had over 1,400 years of capacity and already operated
in the same region. (Id.) The needs assessment submissions of both of these landfills identified
economic locational need for the new commercial landfills. (Id.) The Director determined that
there was a need for and approved these two new commercial landfills despite ECDC’s
preexisting massive commercial landfill capacity.
85. Consistent with past Director Howard’s instruction that NERA consider ECDC’s
market and provide a regional market need assessment, in an undated draft memo to Governor
Cox, Director Hansen acknowledged his Division’s prior practice of reviewing market need for
new commercial landfills: “An anticipated focus of such a challenge could include questions on
how the Division has handled its review of PPR’s application in comparison to the Division’s
38
historical handling of commercial landfill applications.” (NERA’s Reply to SC&A Evaluation,
Appendix 15 at 3.)
86. These two past approvals of commercial landfills is consistent with and supports
PPR’s interpretation of Subsection 10(b)(i). The Director’s misinterpretation is not a “fair and
rational basis for the inconsistency.” Utah Code § 63G-4-403(h)(iii). The need for the additional
commercial capacity is determined by the public benefits resulting from landfill’s location, cost
of disposal, and high quality. NERA’s expert opinions on the public benefits are uncontroverted.
III. The Director Clearly Erred By Failing To Make A Determination On Utah Code § 19-6-108(11).
87. The Executive Director should find that it was clearly erroneous for the Director
to make no determination in his Order on whether PPR’s Commercial Application met section
19-6-108(11). The Executive Director should find that PPR meets the requirements of section
19-6-108(11) and remand this matter back to the Director with instructions to issue a new order
concluding that PPR’s Commercial Application meets section 19-6-108(11).
88. Utah Code § 19-6-108(11) provides:
(11) The director may not approve a commercial nonhazardous solid or hazardous waste facility operation plan unless based on the application,
and in addition to the determination required in Subsections (9) and (10),
the director determines that:
(a) the probable beneficial environmental effect of the facility to the state outweighs the probable adverse environmental effect; and
(b) there is a need for the facility to serve industry within the state.
(Emphasis added.) 89. PPR satisfies all the requirements of Subsection (11). In considering changing
PPR’s landfill to commercial, the Director must weigh the expected environmental benefit to the
state against the probable adverse environmental effect. His analysis must be based on PPR’s
Commercial Application. The record evidence shows that the expected benefit to the state from
39
PPR’s commercial landfill outweighs any probable adverse environmental effect of which there
is none.
90. The probable beneficial environmental effect of changing PPR’s landfill to
commercial is diverting Utah waste to a state-of-the-art, high-quality landfill away from less
environmentally protective landfills in northern Utah (and southern Idaho) like the unlined Box
Elder County’s Little Mountain Landfill. Another effect is air quality benefits because of the
location of PPR’s landfill. On the other hand, there is no probable adverse environmental effect
of PPR’s landfill. The landfill has a state-of-the-art design that does not need to be changed to
become a commercial landfill. In responding to public comments raising concerns about
groundwater contamination; impacts to wildlife, air quality, Great Salt Lake ecosystem, public
health; accepting out-of-state and hazardous waste, the Director found no basis because he
correctly found that the landfill meets all of the regulatory technical requirements. (See
Director’s Response at 4-6.)
91. Based on PPR’s Commercial Application, as required under Subsection 11(a), the
only conclusion that can be reached by the Director is that the probable beneficial environmental
effect to the state from changing PPR’s landfill to commercial outweighs the probable adverse
environmental effect.
92. The record evidence proves that PPR likewise has satisfied Subsection (11)(b).
PPR’s Commercial Application proves the need for PPR’s commercial landfill to serve industry
in the state. Just like Subsection 10, Subsection 11 applies only to proposed commercial landfills.
Subsection 11(b) requires the Director to determine that there is a need for PPR’s commercial
landfill to serve industry in the state. Former Director Howard gave guidance to NERA to
interpret the term “industry” broadly to include businesses, state and local governments, and
40
residents of the state, rather than narrowly as only “industrial activities.” He also explained that
the purpose of Subsection 11(b) is to avoid permitting a commercial landfill that would do
nothing but dispose of out-of-state (“imported”) wastes. (See PPR Comment at 21; Appendix 12
thereto.)
93. Based on NERA’s uncontroverted findings and conclusions, there is no reason to
conclude that PPR would accept only out-of-state wastes. (NERA Response to Provisional
Statement of Basis at 18.) The NERA analyses identified multiple economic and environmental
public benefits to the state from changing PPR’s landfill to commercial. The Director does not
refute any of the calculations or findings supporting these public benefits. The only conclusion
that the Director can reach is that there is a need for PPR’s commercial landfill to serve industry
in the state with all the identified public benefits.
94. The need for PPR as a commercial landfill to serve industry within the state is
further supported by the waste disposal contracts PPR and three northern Utah businesses signed
and that are effective upon approval of the Commercial Application.
95. The Executive Director should find that PPR met the requirements of Section 19-
6-108(11) and remand this matter back to the Director with instructions to find that PPR has met
Section 19-6-108(11).
IV. PPR Has Been Substantially Prejudiced By The Director’s Clear Errors.
96. PPR has been substantially prejudiced by the Director’s clear errors. A “party has
been substantially prejudiced if the alleged error was not harmless.” Onysko v. Department of
Env't Quality, 2020 UT App 51, ¶ 66, 463 P.3d 669, cert. denied, 466 P.3d 1072 (Utah 2020).
And “an error is harmless if it is sufficiently inconsequential that there is no reasonable
likelihood that the error affected the outcome of the proceedings.” Id. (cleaned up).
41
97. The Director’s misinterpretation of Section 19-6-108(b)(i) and his failure to make
a determination on Section 19-6-108(11) were clear errors and they were not harmless. Those
clear errors affected the outcome because the Director should have approved of PPR’s
Commercial Application.
CLAIM FOR RELIEF
98. Based on the foregoing, the Executive Director should:

a. find that the Director’s interpretation of Section 19-6-108(10)(b)(i) is clearly erroneous; b. find that it was clearly erroneous for the Director to make no
determination in the Order on whether PPR met Section 19-6-108(11);
c. find that PPR met the requirements of Section 19-6-108(10)(b)(i);
d. find that PPR met the requirements of Section 19-6-108(11) and remand
this matter back to the Director with instructions to find that PPR has met
Section 19-6-108(11); e. find that PPR has been substantially prejudiced by the Director’s clear errors; and

f. vacate the Order, remand the matter back to the Director, and order the Director to approve PPR’s Commercial Application.
DATED this 5th day of November 2024.
DENTONS DURHAM JONES PINEGAR P.C.
/s/ Bradley R. Cahoon Bradley R. Cahoon Tyler R. Cahoon
Cole P. Crowther

Attorneys for Promontory Point Resources, LLC
1
SL_7078495.13
CERTIFICATE OF SERVICE
I hereby certify that on November 5, 2024, a true and correct copy of the foregoing was
served on the following as indicated:
Executive Director Kim Shelly
Department of Environmental Quality
195 North 1950 West, Fourth Floor Salt Lake City, UT 84116 Via hand-delivery
Craig Anderson
Office of Attorney General Environmental Division Utah Attorney General’s Office 195 North 1950 West, Second Floor
Salt Lake City, UT 84119
Via hand-delivery and email: [e-mail]
Via email: [e-mail]
Director Douglas Hansen
Utah Department of Environmental Quality, Division of Waste Management & Radiation Control 195 North 1950 West, Second Floor Salt Lake City, UT 84116
Via email: [e-mail]
Administrative Proceedings Records Officer Environment Division Utah Attorney General’s Office
195 North 1950 West, Second Floor
Salt Lake City, UT 84116 Via email: [e-mail]
/s/Carol MacKay

Raymond Wixom Office of Attorney General
Environmental Division
Utah Attorney General’s Office 195 North 1950 West, Second Floor Salt Lake City, UT 84116
2
Exhibit 1 to Petition for Review
List of Documents Cited by PPR:
1. Final Permit Order, In the Matter of: Promontory Point Resources, LLC SW416, dated October 7, 2024 (“Order”).
2. Final Statement of Basis – Class V Landfill Application (“Basis”).
3. Response to Comments – Class V Landfill Application (“Director’s Response”). 4. Provisional Statement of Basis – Intention to Deny – Class V Landfill Application (“Provisional Basis”), Appendix 1 to PPR Comment. 5. Public Comment on Promontory Point Class V Landfill by Promontory Point
Resources, LLC, dated April 8, 2023 (“PPR Comment”).
6. NERA Economic Consulting’s Reply to Provisional Statement of Basis, dated April 7, 2023 (“NERA Comment”), Appendix 2 to PPR Comment. 7. NERA PowerPoint titled “Reply to ‘Statement of Basis: Intention to Deny Class V Landfill Application, Appendix 2 to PPR Comment.
8. Declaration of Will Spears dated March 31, 2024, Appendix 3 to PPR Comment
9. NERA’s Promontory Point Landfill Class V Permit Needs Assessment Report Volume I, dated October 2020 (“Needs Assessment”), Appendix 10 to the PPR Comment. 10. Second Declaration of Anne Garner, P.G. dated April 7, 2023, Appendix 11 to
PPR Comment.
11. Declaration of Dr. Anne Smith, dated April 7, 2023, Appendix 12 to PPR Comment. 12. Application Completeness – Promontory Point Landfill Class V Permit Application and Class I Permit Renewal Application, Box Elder County, dated
May 4, 2021, Appendix 13 to the PPR Comment.
13. NERA’s Reply to SC&A Response NERA’s “Promontory Point Landfill Class V Permit Needs Assessment Report” (“NERA’s Reply to SC&A Evaluation”), dated November 12, 2021, Appendix 14 to the PPR Comment. 14. Promontory Point Commercial Landfill Application – Briefing Memo, Appendix
15 to the PPR Comment.
15. SC&A Evaluation of the Promontory Point Resources, LLC Class V October 2020 Needs Assessment Report, dated August 6, 2021 (“SC&A Reply to NERA Needs Assessment”), Appendix 16 to the PPR Comment.