DSHW-2025-002025

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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 REPLY TO PROMONTORY POINT RESOURCES, LLC’S OPPOSITION TO THE
DIRECTOR’S DISPOSITIVE MOTION AS TO THE MEANING OF UTAH CODE § 19-6-108(10)
Richard D. McKelvie
Administrative Law Judge
Promontory Point Resources, LLC Petition for Review of Director’s Order Denying Class V Permit
Docket No. SW416
March 18, 2025

1. Pursuant to Utah Code § 19-1-301.5(1)(b) and (8)(a)(ii) and Utah Administrative Code
R305-7-211, Respondent Director of the Utah Division of Waste Management and Radiation
Control (the Director) hereby submits this Reply to Petitioner Promontory Point Resources, LLC’s
(PPR) Opposition to the Director’s Dispositive Motion as to the Meaning of Utah Code § 19-6-
108(10) (PPR’s Response).
INTRODUCTION
2. The Director’s Dispositive Motion as to the Meaning of Utah Code § 19-6-108(10) (the
Director’s Statutory Interpretation Motion) requested the ALJ to recommend that the Executive
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Director issue an order finding that the Director correctly interpreted Utah Code § 19-6-108(10)(b)
and instructing PPR to marshal evidence in accordance with that interpretation. The Director’s
Statutory Interpretation Motion did not request a decision on the merits of this case, and he urges
that the Director’s Statutory Interpretation Motion is not the correct vehicle for discussing any
issue beyond whether his interpretation of the statute is correct.
3. PPR’s Response rehashes much of what it previously claimed in its Petition for Review
and Motion for Summary Judgment, which the Director has thoroughly addressed in the Director’s
Statutory Interpretation Motion, the Director’s Response to PPR’s Motion for Summary Judgment,
and the Director’s Reply to PPR’s Opposition to the Director’s Motion to Dismiss. PPR’s
Response fails to address the merits of the arguments the Director has thoroughly addressed and
plainly demonstrates its fundamental misunderstanding of a special adjudicative proceeding under
Section 301.5.
4. Accordingly, the ALJ should recommend the Executive Director grant the Director’s
Statutory Interpretation Motion.
ARGUMENT
5. Subsection (10)(b)(i) requires commercial permit applicants to provide “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 … waste.” As the Director has explained
previously, this means that PPR must describe the need in the State of Utah—not Idaho or
California—for the additional commercial, physical capacity its proposed commercial landfill—
not its current noncommercial landfill—would provide. In making this description, PPR must
evaluate its proposed commercial capacity against all other capacity, commercial and
noncommercial.
6. The Director’s interpretation of Subsection (10)(b)(i) aligns with the canons of statutory
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construction and legislative history, and it is unaltered by PPR’s attempt to apply the canon of
constitutional avoidance. Before turning to the substance of these interpretative arguments, the
Director again attempts to rectify PPR’s misunderstanding of the fundamentals of a special
adjudicative proceeding under Section 301.5.
I. PPR Misunderstands the Fundamentals of a Special Adjudicative Proceeding Under Section 301.5.
A. The Standard of Review Applicable to Pure Questions of Law Under Section 301.5 is Correctness.
7. For the avoidance of doubt, the standard of review for the Director’s interpretation of
Subsection (10)(b) is correctness. Sevier Citizens for Clean Air & Water, Inc. v. Dep’t of Env’t
Quality, 2014 UT App 257, ¶ 5, 338 P.3d 831; Friends of Great Salt Lake v. Dep't of Env't Quality,
Div. of Waste Mgmt. & Radiation Control, 2023 UT App 58, ¶ 23, 531 P.3d 767.
8. The Director’s Statutory Interpretation Motion did not, as PPR suggests, claim that the
standard of review for the Director’s Statutory Interpretation Motion is the “clear error standard
based on Petitioner’s marshaling of the evidence.” PPR’s Resp. at 2. The Director’s Statutory
Interpretation Motion obviously states that the clear error standard applies at the brief on the merits
stage. Director’s Stat. Interp. Mot. at 1, 3. The Director’s Statutory Interpretation Motion presents
a question of statutory interpretation and “precedes briefing on the merits, where the Director’s
findings are to be viewed under a clear error standard based on Petitioner’s marshaling of the
evidence.” Director’s Stat. Interp. Mot. at 1 (Emphasis added). A question of statutory
interpretation is a question of law. See Hertzske v. Snyder, 2017 UT 4, ¶ 5, 390 P.3d 307.
9. Therefore, the appropriate standard of review under which the ALJ is to recommend the
Executive Director uphold his interpretation of Utah Code § 19-6-108(10)(b)(i) is correctness.
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B. PPR Misunderstands the Purpose of Dispositive Motions Under Section 301.5.
10. As the Director thoroughly addressed in his Response to PPR’s Motion for Summary
Judgment (the Director’s Response), it is inappropriate to engage in a dispute over material facts
at the pre-briefing dispositive motion stage of a Section 301.5 proceeding. Director’s Resp. at 3.
PPR suggests that such facts “provide important context and background that the ALJ must
consider.” PPR’s Resp. at 2. At the same time, PPR “does not disagree that the [Director’s
Statutory Interpretation Motion] seeks to resolve a legal question.” Id. Yet, PPR urges the Director
to engage in a factual dispute. The Director resists that urge.
11. There may come a time when PPR is afforded the opportunity to marshal the evidence in
an attempt to demonstrate the Director’s permit order was clearly erroneous. Utah Code § 19-1-
301.5(14)(b). At that time, PPR may use the facts in the Administrative Record. See id. § 19-1-
301.5(9)(a). As PPR recognizes, the Director’s Statutory Interpretation Motion seeks to resolve a
pure question of law, so now is not that time. This question of law should be unadulterated by
PPR’s recitation or characterization of facts in the Administrative Record.
12. Accordingly, the only question presented in the Director’s Statutory Interpretation Motion
is what the Legislature said and what it meant by the words it used in Subsection (10)(b)(i), which
does not require the Director to dispute material facts at this stage.
II. The Director’s Interpretation of Subsection (10)(b)(i) Is Consistent With the Canons of Statutory Construction.
13. In the Director’s Statutory Interpretation Motion as to the Meaning of Utah Code § 19-6-
108(10)(b) (the Director’s Statutory Interpretation Motion) and the Director’s Response, the
Director sets forth the reasons why his interpretation of Subsection (10)(b) aligns with the canons
of statutory construction. The Director hereby incorporates the relevant portions of the Director’s
Statutory Interpretation Motion and the Director’s Response herein.
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A. The Plain Meaning of “Public Benefits” Supports the Director’s Interpretation.
14. The Director explained that the plain meaning of Utah Code § 19-6-108(10)(b)(i) supports
the Director’s interpretation in the Director’s Statutory Interpretation Motion and the Director’s
Response. See Director’s Stat. Interp. Mot. at 5-9; Director’s Resp. at 8-10. See also, Wisden v.
Dixie Coll. Parking Comm., 935 P.2d 550, 553 (Utah Ct. App. 1997), Gonzales v. Carhart, 550
U.S. 124, 152 (2007), GeoMetWatch Corp. v. Utah State Univ. Rsch. Found., 2018 UT 50, ¶15,
428 P.3d 1064.
15. Perhaps because the Director has fully addressed the plain, ordinary meaning of Subsection
(10)(b)(i), and has demonstrated that there are no terms with technical meanings in that subsection,
PPR’s Response appears to abandon its theory that “public benefits” is a technical, economic
phrase. PPR’s Resp. at 5. Instead, PPR’s Response advances the theory that the Director was
somehow obligated to make economic and environmental benefits “fit under the broad, ordinary
meaning of ‘public benefits’” included in Subsection (10)(b). Id. The plain meaning of Subsection
(10)(b) does not require the Director to make those benefits fit under Subsection (10)(b). Even if
the Director agreed that economic and environmental benefits are “public benefits” that should be
included under Subsection (10)(b), that would not excuse PPR from meeting the requirement
explicitly stated in Subsection (10)(b)(i). PPR would be required to demonstrate those economic
and environmental benefits in addition to the benefit under Subsection (10)(b)(i).
16. Accordingly, the plain meaning of “public benefits” supports the Director’s interpretation.
B. The Director’s Interpretation of “Need” is Supported by the Canons of Statutory Construction.
17. Subsection (10)(b)(i) instructs an aspiring commercial facility to describe the need for the
additional commercial capacity its proposed commercial facility would provide to Utah.
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18. The commercial solid waste management capacity PPR wants to add is landfill disposal
capacity. Under Utah law, landfill disposal capacity is differentiated by two categories,
commercial and noncommercial. See Utah Code § 19-6-102(3)(a), (3)(b)(iii). The Legislature
could have instructed PPR to evaluate its proposed additional commercial physical capacity
against only other commercial capacity or against only noncommercial capacity.1 However, the
plain language of Subsection (10)(b) does not demonstrate that the Legislature limited PPR’s
evaluation to only commercial capacity. The Legislature instructed PPR to evaluate the need for
“additional capacity,” without qualification.
19. Setting policy is the province of the Legislature, and the code the Legislature drafted and
the Governor signed is not ambiguous. The Legislature’s omission of this qualification is presumed
to be purposeful. State v. Felts, 2024 UT 41, ¶ 21, 560 P.3d 787 (providing that statutory
interpretation seeks to give effect to omissions in statutory language by presuming those omissions
are purposeful). PPR’s argument that since Subsection (10) is directed to commercial facilities, it
doesn’t have to consider noncommercial capacity is unreasonable and invalid. This leaves PPR
responsible for evaluating all other capacity, commercial and noncommercial.
20. Accordingly, the Director’s interpretation of “need” is supported by the canons of statutory
construction.
1 PPR appears to misconstrue the Director’s use of quotation marks to needlessly foist malicious intent on the Director’s explanation of his interpretation of Subsection (10)(b). PPR’s Resp. at 6. Quotation marks can be used for emphasis or to discuss a particular term. As is clear to a reasonable reader, quotation marks not accompanied by a citation do not generally demarcate a direct quotation. The Director stands by his explanation and use of quotation marks. He observes that PPR’s suggestion of malicious intent is unwarranted and unhelpful.
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C. The Context and Structure of Subsection (10), the Solid and Hazardous Waste Act, and the Environmental Quality Code Support the Director’s interpretation.
21. The Director fully explained that his interpretation is supported by the context and structure
of Subsection (10), the Solid and Hazardous Waste Act, and the Environmental Quality Code in
the Director’s Statutory Interpretation Motion and in the Director’s Response. See Director’s Stat.
Interp. Mot. at 10-11; Director’s Resp. at 10-13. The Director hereby incorporates those arguments
herein.
D. The Director’s Interpretation Gives Effect to Each Word in the Statute.
22. The Director’s interpretation gives effect to each word in the statute and does not render
any part of the statute “inoperative or superfluous.” See Turner v. Staker & Parson Companies,
2012 UT 30, ¶ 12, 284 P.3d 600.
23. PPR claims that the Director “neglects to identify how PPR’s interpretation of Subsection
(10) fails to give effect to each word in the statute.” PPR’s Resp. at 11. This claim is incorrect.
The Director has repeatedly identified how PPR’s interpretation fails to give effect to each word
in the statute. In the Director’s Statutory Interpretation Motion, the Director explained that PPR’s
interpretation of “need” renders Subsection (10)(b)(i) inoperative and superfluous because it
substitutes the requirement in Subsection (10)(b)(i) that PPR show a need for additional
commercial, physical capacity (the Physical Capacity Need) with the requirement in Subsection
(10)(a)(ii) to show more market need (the General Market Need). Director’s Stat. Interp. Mot. at
11-12; see also Director’s Resp. at 11-13. Conversely, the Director’s interpretation requires PPR
to demonstrate both a Physical Capacity Need and a General Market Need.
24. Accordingly, the Director’s interpretation of Subsection (10)(b) gives effect to each word
in the statute and renders no part of Subsection (10)(b) “inoperative or superfluous.”
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III. The Director’s Interpretation Fulfills the Legislature’s Intent.
25. The Legislature intended for commercial facilities to satisfy more requirements than
noncommercial facilities. Admin. Rec. at 737-38 (discussing distinction in requirements between
commercial and noncommercial facilities at 2:20:01). The Director’s interpretation fulfills that
intent.
26. To effectuate its intent, the Legislature required commercial facilities to demonstrate a need
for additional commercial capacity under Subsection (10)(b)(i). As the Director explained above,
the Legislature intended commercial facilities like PPR to evaluate its General Market Need under
Subsection (10)(a) and Physical Capacity Need under Subsection (10)(b). In evaluating its
Physical Capacity Need, commercial facilities, like PPR, are to consider the proposed additional
commercial landfill capacity against all other landfill capacity, commercial and noncommercial.
See Director’s Stat. Interp. Mot. at 7-8.
27. Legislative history does not support PPR’s claim that the Legislature intended such terms
as “public benefits,” “need,” “capacity,” or “need for additional capacity” as technical, economic
terms. Reviewers of the Director’s decisions do not rely on legislative history to help them
understand statutory meaning unless a term under review has two plausible meanings. State v.
Watkins, 2013 UT 28, ¶ 22, 309 P.3d 209. The Director and PPR each claim to have the only
plain, indisputable, plausible interpretation of Subsection (10)(b)(i). See Director’s Stat. Interp.
Mot. at 3-5; see also PPR’s Resp. at 1. But each party’s interpretation excludes the other’s. Should
the ALJ choose to examine legislative history to try to clarify this matter, he will find nothing that
supports PPR’s interpretation of Subsection (10)(b). Instead, the ALJ will find that the Legislature
intended to require commercial facilities, like PPR, to satisfy more requirements than
noncommercial facilities.
28. Accordingly, the Director’s interpretation fulfills the Legislature’s intent.
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B. The Director Added No Substantive Words to Subsection (10)(b).
29. Consistent with Utah Supreme Court precedent, the Director did not infer substantive terms
into Subsection (10)(b)(i). See Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 21, 428 P.3d
1096.
30. While PPR attempts to chastise the Director for adding words the statute, the words in the
code requiring evaluation of an independent Physical Capacity Need are unavoidable. It is PPR’s
argument that would require ignoring words in the code. PPR doesn’t hesitate to argue that since
the public benefits and the need for additional capacity the Legislature identified in Subsection
(10)(b) are not exclusive lists, those lists must include additional NERA-identified benefits, such
as location, economic, and environmental benefits. PPR’s Resp. at 4-6. These asserted benefits
do not come within the range of “need for additional capacity,” as identified in Subsection
(10)(b)(i), and the Director therefore did not consider them. Even if he did consider them, they do
not satisfy the legislatively-identified need for additional commercial, physical capacity.
31. Accordingly, the Director added no substantive words to Subsection (10)(b). Rather, his
construction is the only one that gives substantive meaning to all the words in the code.
IV. The Canon of Constitutional Avoidance Does Not Save PPR’s Erroneous Interpretation.
32. In the Director’s Dispositive Motion to Dismiss PPR’s dormant Commerce Clause Claim
(the Director’s Dispositive Motion) and in the Director’s Reply to PPR’s Opposition to the
Director’s Motion to Dismiss (the Director’s Reply), the Director demonstrates why neither the
ALJ nor the Executive Director can evaluate PPR’s dormant Commerce Clause claim, regardless
of whether it is predicated upon the Director’s interpretation or his application of Subsection
(10)(b)(i). The Director hereby incorporates the relevant portions of the Director’s Dispositive
Motion and the Director’s Reply herein.
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CONCLUSION
33. For these reasons, as well as those set forth in the Director’s Statutory Interpretation
Motion, the ALJ should recommend the Executive Director issue an order that:
a. Utah Code § 19-6-108(10)(b) means PPR must demonstrate the need in the State
of Utah for additional commercial, physical capacity to manage solid waste. In making
this demonstration, PPR must consider existing commercial and noncommercial capacity;
and
b. In any brief on the merits, PPR must marshal the evidence supporting both the
General Market Need and a separate Physical Capacity Need, as required by the code.
DATED this 18th Day of March 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 18th day of March 2025, I caused a copy of the foregoing DIRECTOR’S REPLY TO PROMONTORY POINT RESOURCES, LLC’S OPPOSITION TO THE DIRECTOR’S DISPOSITIVE MOTION AS TO THE MEANING OF UTAH CODE § 19-6-108(10) 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/ Raymond Wixom Raymond Wixom