DSHW-2025-001186

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Raymond D. Wixom (#3532)
Assistant Attorney General
DEREK E. BROWN (#10476)
Utah Attorney General
P.O. Box 140873
Salt Lake City, Utah 84114-0873
385-414-0664
[e-mail]
Attorney for Director, Utah Division of Waste Management and Radiation Control

BEFORE THE EXECUTIVE DIRECTOR OF THE
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY

In the Matter of:

DIRECTOR’S RESPONSE IN
OPPOSITION TO PROMONTORY
POINT RESOURCES, LLC’s MOTION
TO SUPPLEMENT THE
ADMINISTRATIVE RECORD

Richard D. McKelvie
Administrative Law Judge

Promontory Point Resources, LLC Petition for
Review of Director’s Order Denying Class V
Permit Application

Docket No. SW416
January 16, 2025

The Director of the Division of Waste Management and Radiation Control (Director)
submits this response in opposition to Promontory Point Resources, LLC’s (PPR) non-
dispositive Motion to Supplement the Administrative Record (PPR’s Motion), filed November 5,
2024. PPR’s Motion is not supported by Utah Code § 19-1-301.5(4), (6)(e), (9)(c) or by Utah
Admin. Code R305-7-209(1), and the Director therefore requests the Administrative Law Judge
(ALJ) deny PPR’s Motion.
I. Introduction.
1. A person may not own, construct, modify, or operate a facility for the purpose of
disposing of nonhazardous solid waste without first submitting and receiving approval of the
Director for an operation plan (permit) for that facility. Utah Code § 19-6-108(3)(a)(i).
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2. In 2020, PPR applied for a Class V permit that would approve Promontory Point Landfill
(PPL) to operate as a commercial facility, authorized to receive nonhazardous solid waste from
any source, within or without the state of Utah. Utah Admin. Code R315-301-2(11). The
Director issued his intent to deny PPR’s Class V application in February 2023. The Director
held a public comment period on his intent to deny PPR’s Class V permit application between
February 23, 2023, and April 9, 2023, and held a public hearing on March 27, 2023 (the Public
Comment Period). See Admin. Rec. at 4819-32. The Director issued his Final Permit Order
denying PPR’s Class V permit application on October 7, 2024. Admin. Rec. at 5464-65.
3. On November 5, 2024, PPR filed a Petition for Review challenging the Director’s denial.
On November 5, 2024, prior to the Director filing and serving the Administrative Record, PPR
also submitted PPR’s Motion, which requested the ALJ to supplement the Administrative Record
with a sworn declaration of Lauren Chauncey (the Chauncey Declaration) and three Master
Disposal Services Agreements (the Waste Contracts), all of which were created after the Final
Permit Order. On December 3, 2024, the Executive Director appointed the ALJ for this case.
4. On January 13, 2025, the Director filed and served the Administrative Record, which
consists of: the order denying the permit application; the permit application; the Director's
Statement of Basis; the notice and record of each public comment period and each public
hearing; all comments, written and oral, submitted during the Public Comment Period; the
Director’s Response to Comments; information requested by and submitted to the Director and
designated by the Director as part of the basis for his decision; and additional information
specified by rule. He will include documents agreed to by the Director and PPR, should there be
any. Utah Code § 19-6-301.5(9)(b); Utah Admin. Code R305-7-209(1).
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II. Legal Background and Standards.
5. Utah Code § 19-1-301.5 ensures that the Director’s decision to approve or deny a permit
is based upon the information he has at the time he makes his decision. If the Director provides a
public comment period, anyone who may want to challenge his decision must, during that public
comment period, raise any issue or argument that person might use as a basis to challenge the
Director’s decision. See id. § 19-1-301.5(6)(e). The potential challenger must support each issue
or argument “with information or documentation that is cited with reasonable specificity and
sufficiently enables the director to fully consider the substance and significance of the issue.” Id.
§ 19-1-301.5(4).
6. The Director is required to file and serve an Administrative Record within 40 days after
the Executive Director appoints an ALJ under Utah Code § 19-1-301.5. Id. § 19-1-
301.5(8)(a)(i). The ALJ shall conduct his review “based only on the [A]dministrative [R]ecord
and not as a trial de novo.” Id. § 19-1-301.5(9)(a).
7. Utah Code § 19-1-301.5(9)(c) establishes a rebuttable presumption against supplementing
the Administrative Record. A rebuttable presumption shifts the burden of producing evidence to
the party seeking to overcome the presumption. Barron v. Lab. Comm’n, 274 P.3d 1016, 1020
(Utah Ct. App. 2012). That presumption continues until contrary evidence is presented. Wyatt v.
Baughman, 239 P.2d 193, 198 (Utah 1951). If the moving party fails to rebut the presumption
against supplementing the Administrative Record, such information should be excluded from the
Administrative Record. Utah Code § 19-1-301.5(4).
8. Here, PPR is the moving party seeking to overcome the presumption. Under Utah Code
§ 19-1301.5(9)(c)(iii), the ALJ may grant PPR’s Motion “if [PPR] proves that:
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a. Good cause exists for supplementing the record;
b. Supplementing the record is in the interest of justice; and
c. Supplementing the record is necessary for resolution of the issues.”
9. These elements are conjunctive, which requires PPR to prove each of the three
elements—proving just one or two elements is insufficient to overcome the rebuttable
presumption.
10. PPR’s Motion failed to overcome the rebuttable presumption against supplementing the
Administrative Record and should therefore be denied.
III. The Administrative Record should not be supplemented with the Chauncey
Declaration because PPR failed to overcome the rebuttable presumption under Utah
Code § 19-1-301.5(9)(c).
11. PPR failed to prove any of the three elements under Utah Code § 19-1-301.5(9)(c)
necessary to overcome the rebuttable presumption against supplementing the Administrative
Record with the Chauncey Declaration.
A. Good cause does not exist for supplementing the Administrative Record with the
Chauncey Declaration.
12. Good cause does not exist for supplementing the Administrative Record with the
Chauncey Declaration. To demonstrate good cause, one must show why a request should be
granted or an action excused. See Good Cause, BLACK’S LAW DICTIONARY (12th ed. 2024).
Often, good cause must be predicated upon special circumstances outside of a party’s control and
in situations where there is no fault, excusable or otherwise. See Johnson v. Dep’t of Com., 542
P.3d 104, 108 (Utah Ct. App. 2023).
13. PPR failed to demonstrate special circumstances outside of its control or a situation
where it was not at fault for failing to include the Chauncey Declaration either in its Class V
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permit application or public comment during the Public Comment Period. In fact, PPR’s Motion
fails to produce any evidence demonstrating good cause for supplementing the Administrative
Record with the Chauncey Declaration. Instead, PPR argues “as set forth herein, good cause
exists for supplementing the record with the Chauncey Declaration.” PPR’s Motion at 4.
However, this conclusory proposition is followed by an analysis of whether supplementing the
record is in the interests of justice and necessary to resolve issues in the case. Id. PPR’s Motion
includes no independent analysis or evidence to substantiate its claim of good cause.
14. Even if PPR could substantiate its claim of good cause, whether and at which juncture in
this case PPR submitted the Chauncey Declaration was entirely within PPR’s control. The
Chauncey Declaration is a legal argument that was not prepared until the day PPR filed its
motion to supplement the Administrative Record, which was 29 days after the Director issued his
Final Permit Order. Consequently, it was neither available to the Director during his evaluation
of PPR’s Class V permit application nor his evaluation of PPR’s public comment. It therefore
played no role in developing his Final Permit Order.
15. Accordingly, PPR failed to produce evidence to substantiate good cause, which all but
forecloses its chances of overcoming the presumption against supplementing the Administrative
Record with the Chauncey Declaration. See supra ¶¶ 8-9 (explaining that PPR is required to
prove each of the three elements under Utah Code § 19-1-301.5(9)(c)). Notwithstanding this
omission, there is no good cause to add the Chauncey Declaration to the Administrative Record.
B. Supplementing the Administrative Record with the Chauncey Declaration is not
in the interest of justice.
16. The interests of justice might be advanced if an ALJ needed to supplement the
Administrative Record to ensure fairness to a party whose rights may be affected by case-
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specific issues. See Interests of Justice, BLACK’S LAW DICTIONARY (12th ed. 2024). PPR has
failed to demonstrate that it would suffer an injustice if the Administrative Record was not
supplemented with the Chauncey Declaration.
17. The Chauncey Declaration was executed on November 5, 2024, 29 days after the
Director issued his Final Permit Order. It was not part of PPR’s Class V permit application, as
would have been appropriate under Utah Code § 19-6-108(10). It was not part of PPR’s
comments during the Public Comment Period, as required under Utah Code § 19-1-301.5(4). It
played no part in the Director’s evaluation of the Class V permit application, as contemplated
under Utah Code § 19-1-301.5(9)(a). Effectively, PPR is asking the ALJ to supplement the
Administrative Record with new testimony that was never presented to the Director for
consideration, that did not exist until after he issued his permit decision, and concerning which
he had no opportunity to cross-examine or otherwise make inquiry.
18. Moreover, the Chauncey Declaration is essentially a legal argument over what certain
evidence means and how much weight the ALJ should give to it. It is not technical or factual
information; it is an attorney’s opinion on factual information. Ms. Chauncey has demonstrated
no more legal expertise in interpreting the meaning of the documents in the legislative history of
Senate Bill 255 than any other attorney. Her declaration sets out nothing by way of
qualifications, other than her status as an attorney, to offer an expert opinion on the meaning of
documents in the legislative history. It is irrelevant to this last factor that PPR may not have
foreseen a need for a discussion of the legislative history of Senate Bill 255, which has been in
existence since 1990, until it saw the Director’s Statement of Basis.
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19. Any injustice PPR may suffer from the Chaucey Declaration being excluded from the
Administrative Record is far outweighed by the injustice the Director would suffer if it were
included. It would be an injustice to the Director to add the Chauncey Declaration to the
Administrative Record because such a result would deprive him of the opportunity to fulfil his
responsibility to review and reach a conclusion regarding PPR’s Class V permit application.
This would necessarily prejudice how the ALJ and Executive Director ultimately evaluate his
decision to deny PPR’s Class V permit application.
20. It is not in the interest of justice to add the Chauncey Declaration to the Administrative
Record.
C. Supplementing the Administrative Record with the Chauncey Declaration is not
necessary for resolution of the issues in this case.
21. The primary issue in this case is whether PPR’s Class V permit application demonstrated
“the need in the state for additional capacity for the management of nonhazardous solid or
hazardous waste” as required by Utah Code § 19-6-108(10)(b)(i). See Petition for Review at 2-5;
see also Response to Comments at 8-14, 39-40; Admin. Rec. 5480-86, 5511-12.
22. The Chauncey Declaration is a legal argument and is not necessary in the Administrative
Record to resolve the issue of whether “the phrase ‘public benefits’ is not an economic-based
concept.” Declaration of Lauren Chauncey, ¶ 4. PPR is able to present its legal argument in the
motions and briefs it files in the course of this case.
23. The Chauncey Declaration is PPR’s attempt at excising legislative history, which it finds
unfavorable to its position, early in this case’s proceedings. This would complicate further
exploration of legislative history at a later juncture. Neither the ALJ nor the Executive Director
need or will benefit from including the Chauncey Declaration in the Administrative Record. The
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Director expects PPR and the Director to disagree on what the Legislature meant by “public
benefits” under Utah Code § 19-6-108(10)(b). At that time, the ALJ can weigh the Director’s
and PPR’s arguments. The ALJ can consider the legislative history and give it the weight he
thinks it deserves. The ALJ has no need for the Chauncey Declaration to do those things, and
therefore it is not necessary for the resolution of the issues in this case.
24. PPR has not rebutted the presumption against adding the Chauncey Declaration to the
Administrative Record. Therefore, the ALJ should decline, under Utah Code § 19-1-301.5(9)(c),
to supplement the Administrative Record with the Chauncey Declaration.
IV. The Administrative Record should not be supplemented with the Waste Contracts
because PPR failed to overcome the rebuttable presumption under Utah Code § 19-
1-301.5(9)(c).
25. PPR failed to prove any of the three elements under Utah Code § 19-1-301.5(9)(c)
necessary to overcome the rebuttable presumption against supplementing the Administrative
Record with the Waste Contracts.
A. Good cause does not exist for supplementing the Administrative Record with the
Waste Contracts.
26. Good cause does not exist for supplementing the record with the Waste Contracts. To
demonstrate good cause, one must show why a request should be granted or an action excused.
See Good Cause, BLACK’S LAW DICTIONARY (12th ed. 2024). Often, good cause must be
predicated upon special circumstances outside of a party’s control and in situations where there
is no fault, excusable or otherwise. See Johnson v. Dep’t of Com., 542 P.3d at 108.
27. In attempting to justify adding the Waste Contracts to the Administrative Record, PPR
suggests that “good cause exists for supplementing the record as the [Waste Contracts] were not
entered into until October 29, 2024, and were therefore not available at the time PPR submitted
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its public comment.” PPR’s Motion at 5. PPR did not demonstrate special circumstances
outside of its control or a situation where it was not at fault for failing to include the Waste
Contracts either in its Class V permit application or public comment during the Public Comment
Period.1 In fact, the execution and availability of the Waste Contracts was entirely under the
control of PPR and its customers.
28. If PPR wanted the Director to consider such contracts as he made his decisions under
Utah Code §§ 19-6-108(10), it should have included them as part of its Class V permit
application or presented them during the Public Comment Period, as required under Utah Code §
19-1-301.5(6)(e).
29. PPR did not include the Waste Contracts in its Class V permit application. Under Utah
Code § 19-6-108(10), PPR was obligated to demonstrate a number of things about its solid waste
market, and the Director was responsible for determining whether PPR made those
demonstrations. If PPR wanted the Director to consider the Waste Contracts, it should have
timely entered into those contracts and included them in its Class V permit application to
respond to the information requirements of Utah Code § 19-6-108(10)(a). PPR did not do so,
and the Director had no opportunity to consider the Waste Contracts. PPR’s untimely Waste
Contracts are irrelevant to PPR’s Petition for Review.
30. PPR did not include the Waste Contracts in the public comment it submitted during the
Public Comment Period, as required by Utah Code § 19-1-301.5(4)(a) and (b). The Director held
the Public Comment Period on his intention to deny PPR’s permit application. If PPR believed

1 As described above, under Utah Code § 19-1-301.5(4), “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
specify and sufficiently enables the director to fully consider the substance and significance of the issue.”
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the Waste Contracts would have supported an issue or argument it raised during the Public
Comment Period, it should have provided the Waste Contracts as part of its public comment, not
29 days after the Director issued his Final Permit Order. Because PPR did not provide the Waste
Contracts during the Public Comment Period, the Director was denied the opportunity to
consider them as PPR’s support for the substance and significance of an issue PPR raised in its
public comment. See Utah Code § 19-1-301.5(6)(e) (providing that 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.”).
31. Moreover, the issue or argument was reasonably ascertainable before or during the Public
Comment Period. The Director’s Intent to Deny the Class V permit, precisely the document
upon which the Public Comment Period was predicated, evaluated the proven market for PPL by
concluding “PPR has provided detailed analysis of the market and utilizes economic expertise to
argue that the proposed Class V landfill could be competitive with local and regional markets.”
Intent to Deny at 4, Admin. Rec. 4814. The Director continued by indicating that “PPR did not
provide proposed pricing for disposal services.” See Id. Prior to the Public Comment Period,
PPR could have used the waste disposal agreements to calculate proposed pricing for disposal
services. See PPR Motion, Exhibit 2, at 7.2 Accordingly, the potential need for including the
Waste Contracts was reasonably ascertainable before and during the Public Comment Period.

2 Each of the three Master Disposal Services Agreements included as Exhibit 2 in PPR’s Motion plainly state the
cost of disposal for each customer, including $30.00/ton of non-hazardous solid waste for C&C Construction
Containers, $30.00/ton of non-hazardous solid waste for Robinson Waste, and $30.00/ton of non-hazardous solid
waste for Salt City Sales INC.
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32. PPR has not demonstrated good cause for supplementing the Administrative Record with
the Waste Contracts.
B. Supplementing the Administrative Record with the Waste Contracts is not in the
interest of justice.
33. The interest of justice might be advanced if an ALJ needed to supplement the
Administrative Record to ensure fairness to a party whose rights may be affected by case-
specific issues. See Interests of Justice, BLACK’S LAW DICTIONARY (12th ed. 2024). PPR has
failed to demonstrate that it would suffer an injustice if the Administrative Record was not
supplemented with the Waste Contracts.
34. PPR suggested that supplementing the Administrative Record with the Waste Contracts is
in the interest of justice “considering their direct relevance to PPR’s satisfaction of Subsection
(11)(b) and the Director’s failure to make a determination thereon.” PPR’s Motion at 5.
However, as discussed in more detail below, the Director’s decision to deny PPR’s Class V
permit is not based upon its ability to satisfy Utah Code § 19-6-108(11)(b). The Director did not
make a determination regarding Utah Code § 19-6-108(11) because PPR failed to satisfy Utah
Code § 19-6-108(10)(b)(i). Response to Comments at 40; Admin. Rec. at 5512. Including the
Waste Contracts in the Administrative Record is not necessary to ensure fairness because the
primary issue in this case is whether PPR satisfied Utah Code 19-6-108(10)(b)(i). Accordingly,
PPR would suffer no injustice if the Waste Contracts were excluded from the Administrative
Record.
35. On the other hand, the Director would suffer an injustice if the Waste Contracts were
made part of the Administrative Record because he would be deprived of the opportunity to
consider them in the context of PPR’s Class V permit application and its public comment.
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Depriving the Director of this opportunity may unfavorably taint the basis for the Director’s
decision to deny PPR’s Class V permit application, which the ALJ and the Executive Director
are charged with evaluating.
36. PPR failed to demonstrate that supplementing the Administrative Record is in the interest
of justice.
C. Supplementing the Administrative Record with the Waste Contracts is not
necessary for resolution of the issues in this case.
37. As explained above and at length in the Director’s Response to Comments, the primary
issue in this case is whether PPR’s Class V permit application demonstrated “the need in the
state for additional capacity for the management of nonhazardous solid or hazardous waste” as
required by Utah Code § 19-6-108(10)(b)(i). See Petition for Review at 2-5; see also Response
to Comments at 8-14, 39-40; Admin. Rec. at 5480-86, 5511-12.
38. PPR suggests that supplementing the Administrative Record with the Waste Contracts
“helps resolve an important issue—whether PPR has satisfied the requirements of Subsection
(11)(b).” PPR’s Motion at 5. However, the Director made no determination regarding PPR’s
ability to satisfy Utah Code § 19-6-108(11)(b), and PPR’s satisfaction of that subsection is not
the primary issue in this case. See Response to Comments at 40; Admin. Rec. at 5512. Instead,
the primary issue in this case is whether PPR satisfied Utah Code § 19-6-108(10)(b)(i). The
Director made no determination concerning Utah Code § 19-6-108(11) because he believed PPR
failed to meet the requirements of Utah Code § 19-6-108(10)(b)(i), leaving him without
sufficient basis to make the determinations required by Utah Code § 19-6-108(11). Response to
Comments at 40; Admin. Rec. at 5512.
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39. PPR did not argue that the Waste Contracts are necessary to determine whether it
satisfied Utah Code § 19-6-108(10)(b)(i), the primary issue in this case. Even if the Waste
Contracts were necessary for the resolution of the primary issue in this case, PPR bore the
burden of demonstrating the need for PPL when it submitted its Class V permit application.
There is no basis, under Utah Code § 19-1-301.5(9)(c) or any other part of Utah Code § 19-1-
301.5, to allow PPR to now supplement the information it was required to submit with its Class
V permit application.
40. Moreover, the ALJ should not reward PPR’s efforts to import new information the
Director was unable to consider in issuing his Final Permit Order. If the Waste Contracts were
truly necessary to resolve the issues in this case, PPR would have included them with its permit
application, in its response to the Director’s requests for additional information, or in its public
comment. PPR did not include the Waste Contracts at any of these junctures. Instead, PPR
awaited the Director’s Final Permit Order, contracted to provide disposal services, and, thereby,
deprived the Director of the opportunity to consider this information in issuing his Final Permit
Order. This catch-22 is antithetical to the purpose of Administrative Record preservation in
permit review adjudicative proceedings. See Utah Code § 19-1-301.5(4).
41. PPR did not, and could not, demonstrate that including the Waste Contracts is necessary
for resolution of the issues in this case.
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V. Conclusion.
42. PPR has not rebutted the presumption against adding the Chauncey Declaration or the
Waste Contracts to the Administrative Record, as required by Utah Code § 19-1-301.5(9)(c).
43. Therefore, the Director respectfully requests the ALJ deny PPR’s motion to supplement
the Administrative Record with the Chauncey Declaration and Waste Contracts, or, in the
alternative and if the ALJ grants PPR’s Motion, in whole or in part, remand this case to the
Director to consider the supplemental information.
DATED this 16th day of January, 2025.

DEREK E. BROWN
ATTORNEY GENERAL

/s/ Raymond D. Wixom
Raymond D. Wixom
Assistant Attorney General
Attorney for the Director of the Division of
Waste Management and Radiation Control

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CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of January, 2025, I caused a copy of the foregoing
DIRECTOR’S RESPONSE IN OPPOSITION TO PROMONTORY POINT
RESOURCES, LLC’s MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD
to be sent by electronic mail to the following:

Administrative Proceedings Records Officer
[e-mail]

Richard D. McKelvie
Administrative Law Judge
[e-mail]

Bradley R. Cahoon
Tyler R. Cahoon
Cole P. Crowther
Dentons Durham Jones Pinegar
[e-mail]
[e-mail]
[e-mail]

Raymond Wixom
Assistant Attorney General for Director
[e-mail]

Brenden K. Catt
Assistant Attorney General
[e-mail]

Douglas J. Hansen, Director
Division of Waste Management and Radiation Control
[e-mail]

/s/ Andrea Gaytan
Andrea Gaytan