DSHW-2025-002074

SL_7709891.1
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
In re matter of: Promontory Point Resources, LLC Docket No. SW416
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 March 6, 2025

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Pursuant to Utah Admin. Code R305-7-211, Petitioner Promontory Point Resources, LLC
(“PPR”), through counsel, submits to the Administrative Law Judge (“ALJ”) this opposition to the
Dispositive Motion as to the Meaning of Utah Code § 19-6-108(10)(b) (the “Director’s Motion”)
filed by the Respondent Director of the Utah Division of Waste Management and Radiation
Control (the “Director”).
RELIEF REQUESTED AND GROUNDS FOR RELIEF
The ALJ should recommend that the Executive Director deny the Director’s Motion and
grant PPR’s February 14, 2025 Motion for Summary Judgment (“PPR’s Motion”), which is
adopted by reference herein pursuant to Utah R. Civ. P. 10(c). The issue before the ALJ on the
cross-motions is purely legal—that is, whether the Director’s or PPR’s interpretation of Section
19-6-108(10)(b)(i) is correct.
As set forth herein and in PPR’s Motion, the Director’s interpretation is not only
nonsensical, but it ignores canons of construction, or otherwise improperly applies those canons.
To accept the Director’s interpretation of the statute would mean no commercial landfill could be
approved in the State of Utah for at least the next 1,400 years, regardless of the market need or
public benefits derived from a new commercial landfill. Not only is this interpretation absurd, but
it also raises grave doubts as to its constitutionality against the dormant Commerce Clause. What
is more, the Director’s interpretation renders meaningless Section 10(a) and ignores that the
Director previously required “market need analyses” for two other commercial landfills that it
previously approved.
Accordingly, PPR’s interpretation of Section 19-6-108(10)(b)(i) is correct, and the
Director’s Motion should be denied.

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STANDARD OF REVIEW
The Director incorrectly states that the standard of review on his Motion is a “clear error
standard based on Petitioner’s marshaling of the evidence.” (Director’s Motion, p. 1.) This is
wrong. PPR is not challenging any factual findings, so there is no need to marshal evidence. But
the Director also ignores controlling case law establishing that the Executive Director (and ALJ)
should review the Motion for correctness and give no deference to the Director’s erroneous
interpretation of Section 19-6-108(10). This standard is briefed fully in PPR’s Motion. (See PPR’s
Motion, pp. 7-9.)
RESPONSE TO OMISSION OF STATEMENT OF UNDISPUTED MATERIAL FACTS
The Director fails to include a statement of undisputed material facts, stating “there is no
need for a formal statement of undisputed material facts because this Dispositive Motion is
intended to resolve a pure question of law.” (Director’s Motion, p. 3.) While PPR does not disagree
that the Motion seeks to resolve a legal question, the undisputed material facts provide important
context and background that the ALJ must consider. Thus, pursuant to Utah R. Civ. P. 10(c), PPR
adopts herein all facts set forth in its Petition and PPR’s Motion. In addition to those facts adopted
herein by reference, PPR quotes Utah Code § 19-6-108(10) that 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;

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(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;
(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.)

ARGUMENT
In the Director’s Motion, he argues “four broadly accepted canons of construction” support
his interpretation of Section 19-6-108(10)(b). (Director’s Motion, p. 5.) Ironically, the Director’s
Order cites a single canon of construction, namely that the phrase “public benefits” should be given
its plain meaning. (PPRPFR005480-81.) Nevertheless, the Director’s attempt to remediate his
incorrect interpretation by citing additional canons of construction is futile because he improperly
applies those canons, and as a matter of law, they do not support his interpretation.
As set forth below and in PPR’s Motion, PPR’s interpretation of Section 19-6-108(10)(b)(i)
is correct. This is because (i) the plain reading of Section 19-6-108(b)(i) shows the Director’s
interpretation is incorrect, absurd, and nonsensical; (ii) harmonizing all provisions of the statute
supports PPR’s interpretation—not the Director’s; (iii) the Director’s interpretation renders

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meaningless other provisions in the statute; and (iv) the legislative history should not be
considered, nor does it support the Director’s interpretation.
I. THE PLAIN MEANING OF UTAH CODE § 19-6-108(10)(b)(i) SHOWS THE
DIRECTOR’S INTERPRETATION IS INCORRECT AND ABSURD.
The Director argues the plain meanings of “public benefits” and “need for additional
capacity” support his interpretation of Section (10)(b)(i). (Director’s Motion, p. 6.) His
interpretation requires PPR to establish a “physical capacity need” to change PPR’s landfill to
commercial. But to accept his interpretation would mean that, regardless of the market need for or
public benefits derived from a new commercial landfill, no commercial landfill could be approved
in the State of Utah for at least the next 1,400 years. Not only is the Director’s interpretation absurd
and nonsensical for the reasons described in PPR’s Motion, but the Director’s argument also
ignores the broad meaning of “public benefits” and requires the ALJ to infer substantive terms that
are not in the statute. The Director’s interpretation therefore should be rejected.
A. The Phrase “Public Benefits” in Section 10(b) Supports PPR’s
Interpretation of Section 19-6-108(10)(b)(i).
The Director criticizes PPR’s argument that the phrase “public benefits” contemplates an
economic gain or improved societal welfare by changing the northern Utah PPR landfill to
commercial. (Director’s Motion, p. 6.) But as the Director signals, “If the legislature has not
defined a term, we must look to other sources to derive its meaning—to either the ordinary
meaning of the word, or to its technical sense as a legal term of art.” GeoMetWatch Corp. v. Utah
State Univ. Rsch. Found., 2018 UT 50, ¶ 15, 428 P.3d 1064 (cleaned up). Here, both the ordinary
meaning and technical sense of “public benefits” support PPR’s interpretation.
The Director acknowledges that “public benefits” has a broad, ordinary meaning that
includes the following: “‘things that benefit the public,’ ‘benefits to society,’ or other meanings
that equate to ‘good for the public.’” (Director’s Motion, p. 6.) How then does the Director exclude

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from his plain meaning of “public benefits” the myriad of benefits from changing PPR’s landfill
to commercial—namely, (i) economic benefits to Utahns and (ii) environmental benefits to Utahns
of improved air quality from closer access to a safer lined landfill? (See Petition, pp. 15-17, 22-26,
30-31, 34-36.) Importantly, the Director never refutes PPR’s identified Utah public benefits,
economic and environmental.
Instead, the Director argues vigorously that the Legislature did not use “public benefits” as
a technical, economic phrase. (Director’s Motion, p. 7.) But so what? Fatal to the Director’s
argument is his failure to explain why economic benefits (or the other environmental benefits PPR
identified) would not also fit under the broad, ordinary meaning of “public benefits.” Thus, even
agreeing with the Director that the Legislature intended to use the plain meaning of “public
benefits,” PPR complied with Section (10)(b)’s requirement by including a “description of the
public benefits of the proposed [commercial] facility, including . . . the [market] need in the state
for the additional [commercial] capacity.” Utah Code § 19-6-108(10)(b).1
To further support his argument, the Director refers to Section 19-3-306(5) to contend the
phrase “public benefits” therein is not used “in a technical, economic sense.” (Director’s Motion,
p. 7.) But this is unhelpful to the Director. Section 19-3-306(5) requires a nuclear waste landfill
application to
demonstrate[] the public benefits of the proposed facility, including the lack of
other available sites or methods for the management of the waste that would be less
detrimental to the public health or safety or to the quality of the environment.

(Emphasis added.) Importantly, just as Section 10(b), the identified public benefits in Section 19-
3-306(5) are not an exhaustive list. And so, the statute does not preclude consideration of economic

1 PPR inserted the terms “commercial” and “market” because they already appear in the statute,
consistent with rules of construction.

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benefits. Moreover, unlike Section (10)(b), Section 306(5) conspicuously requires a showing that
there are no other sites that would be safer than the proposed nuclear waste landfill. Id.
Regardless, because the Director has not demonstrated how economic benefits do not fit
into a plain meaning of “public benefits,” his argument should be rejected. PPR has presented
uncontroverted evidence, and the Director concedes that a commercial landfill does not exist in
the northern Utah PPR wasteshed. (PPRPFR005471-73.) PPR’s landfill also is safer than the
unlined Box Elder County landfill and provides lower disposal costs and cleaner air quality for
Utahns. There is simply nothing in the statutes the Director cites to support economic benefits
cannot be considered a “public benefit” under Section (10)(b). Nonetheless, the Director does not
dispute the noneconomic environmental benefits to Utah from changing PPR’s landfill to
commercial.
B. The Director’s Interpretation of “Need in the state for Additional
Capacity” Is Nonsensical.
The Director next argues that the “plain meaning of ‘need in the state for the additional
capacity for the management of . . . solid waste’ is ‘need for additional commercial physical space
to manage . . . solid waste.’” (Director’s Motion, p. 8 (emphasis added).) Although using quotation
marks to suggest he is quoting language from the statute, nowhere in the statute does the term
“physical” appear. Courts “will not infer substantive terms into the text that are not already
there” and neither should the Director. Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 21, 428
P.3d 1096 (emphasis added). PPR does not dispute the Director’s understanding of “capacity” in
Section (10)(b) but objects to the Director’s sleight of hand in describing capacity as “physical air
space.” The Director’s repeated reference to “physical space” or “physical capacity” is misleading
and not supported by the text of the statute. The correct modifier of capacity is “commercial” as

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PPR argues; that term is stated multiple times in the statute. (See PPR’s Motion, pp. 12-14; see
also supra n. 1.)
Not only is the Director’s inference of substantive terms improper and contrary to the
Legislature’s intent, but it is also a nonsensical and absurd interpretation. See State v. GAF Corp.,
760 P.2d 310, 313 (Utah 1988) (“It is axiomatic that a statute should be given a reasonable and
sensible construction and that the legislature did not intend an absurd or unreasonable result.”).
Indeed, changing PPR’s landfill to commercial adds no additional physical airspace capacity.
PPR’s landfill already is part of the volume of physical airspace of Utah:

And the Director concedes there currently is no commercial capacity in the northern Utah
wasteshed. (PPRPFR005471-73.)

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Thus, if PPR is issued a commercial permit, the Director simply changes PPR’s existing
volume to commercial; this does not increase the “physical airspace.” The Director fails to
reconcile the fact that PPR’s landfill already exists and is part of the northern Utah physical
airspace capacity. (Id. at 005511.) His interpretation is absurd, and his Motion should be denied.
Importantly, the Director acknowledges Section (10)(b)(i) requires an applicant “to
describe the public benefits of its proposed commercial landfill” and that the meaning of “need”
in Section (10)(b)(i) refers to “commercial” capacity. (Director’s Motion, p. 8 (emphasis added).)
But these statements conflict with the Director’s interpretation that Section (10)(b)(i) requires an
applicant to demonstrate “a need for additional commercial capacity against both commercial
and noncommercial capacity.” (Id. at p. 9 n.3 (emphasis added).) Section (10)(b) deals only with
proposed commercial landfills, not noncommercial. There is no basis for the Director to infer
“noncommercial capacity” into the statute.
II. THE TERM “NEED” AS USED IN UTAH CODE § 19-6-108(10) SUPPORTS
PPR’S INTERPRETATION.
As the Director correctly cites, terms in a statute must be interpreted to be “in harmony
with other statutes in the same chapter and related chapter.” (Director’s Motion, p. 10 (citing State
v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92).) And there is a presumption “the legislature uses each
word advisedly.” Id. In fact, “when interpreting statutes, [courts] presume that the expression of
one term should be interpreted as the exclusion of another, and [they] seek to give effect to
omissions in statutory language by presuming all omissions to be purposeful.” State v. Stewart,
2018 UT 24, ¶ 13, 438 P.3d 515 (cleaned up) (emphasis added). Applying these principles, PPR’s
interpretation of Section 19-6-108(10) is correct.
The Director errs in arguing that Sections (10)(a), (10)(b), and (10)(c) somehow support
his interpretation that Section (10)(b)(i) requires a “physical capacity need.” (Director’s Motion,

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pp. 10-11.) As noted above, nowhere in the statute is there a reference to “physical capacity need,”
and the Director must presume this omission by the Legislature is purposeful. Stewart, 2018 UT
24, ¶ 13.
Further, there is no basis to support the Director’s statement that the subsections do not
“refer to each other,” or that the term “need” means something different in Section (10)(b) than
how that term is used in Section (10)(a). (Director’s Motion, pp. 10-11.) The Director ignores that
the term “need” is used in both Sections (10)(a) and (10)(b) and that word has the same meaning
in those sections. Instead, he declines to harmonize the two subsections together. Indeed, the
“market need” described in subsection (a) establishes the better location and quality of the PPR
landfill and the corresponding “public benefits” to northern Utahns. See Utah Code § 19-6-
108(10)(b)(i). Stated differently, a proven market need help determine if more commercial landfill
capacity would benefit the public in Utah. And the Director does not dispute that PPR has satisfied
Section (10)(a) in determining there is a “market need” for changing PPR’s landfill to commercial.
Thus, given the uncontroverted market need and consistent with Section (10)(b), the Director
should have considered whether satisfying that need by approving PPR’s Commercial Application
will result in public benefits to Utah, thereby satisfying subsection (b). Ignoring the Utah benefits,
the Director simply concluded there is not a “physical capacity need” in Utah for a new commercial
landfill.
The idea that the statute has a stand-alone requirement that there be a proven need for
“physical capacity” is nonsensical. Indeed, under this theory, Section (10)(a) is obsolete. Based on
the Director’s interpretation, a better-located, safer, and more environmentally responsible landfill

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cannot be approved given the 1,400 years of capacity.2 Ironically, the Director argues PPR’s
interpretation “would swallow Section (10)(b)(i),” but just the opposite is true, the Director’s
interpretation of Section (10)(b)(i) “swallows” Section (10)(a). (Director’s Motion, p. 11.)
In short, the Director’s incorrect interpretation of “need” in Section (10)(b)(i) is not
supported by the other language in the statute, and his interpretation should be rejected.
III. THE DIRECTOR’S INTERPRETATION RENDERS SECTIONS OF THE
STATUTE INOPERABLE.
The Director argues his interpretation “gives effect to each word in the statute.” (Director’s
Motion, p. 11). But just the opposite is true. The Director’s interpretation eviscerates the meaning
and purpose of Section (10)(a). The Director’s entire argument is premised on the notion that the
statute includes the phrase “physical capacity need.” It does not. And so, the Director’s argument
that his interpretation gives effect to each word in the statue is based on a false premise and fails.
Additionally, Section 19-6-108(10) applies to only proposed commercial landfills. But the
Director’s misinterpretation of Section (10)(b)(i) renders inoperative Section 10(a)(iii), which calls
for a review of competing “commercial” landfills. There is no reason to assess competition among
commercial landfills if a potentially competing landfill cannot be approved on grounds there is too
much preexisting “physical landfill airspace” among commercial and non-commercial landfills.
Why would the Legislature call for a market analysis limited to commercial landfills in Section
(10)(a)(iii), but then call for the consideration of physical capacity of non-commercial landfills in
Section (10)(b)(i)? The Director does not explain this contradiction or provide a basis to support

2 Notably, the Director’s prior approval of two proposed commercial landfills required market
needs assessments despite the ECDC Landfill having over 1,400 years of capacity in the same
region. (See PPRPFR004632.) In other words, the Director is making an interpretation of “need”
under Subsection (10)(b) that is inconsistent with the previous Director interpretations. (See
PPR’s Motion, pp. 16-17 n.5.)

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considering distinct types of landfills in Sections (10)(a)(iii) and (10)(b)(i), respectively. And the
text of the statute does not state this.
The Director importantly neglects to identify how PPR’s interpretation of Section 19-6-
108(10) fails to give effect to each word in the statute. This is because PPR’s interpretation
harmonizes the other provisions in the statute without inferring updated terms not already found
in the statute. Accordingly, the canon of construction that “give[s] effect to every word of a statute,
avoiding any interpretation which renders parts or words in a statute inoperative or superfluous”
supports PPR’s interpretation and not that of the Director. Turner v. Staker & Parson Companies,
2012 UT 30, ¶ 12, 284 P.3d 600 (cleaned up).
IV. THE LEGISLATIVE HISTORY SHOULD NOT BE CONSIDERED, BUT EVEN IF
IT IS, IT DOES NOT SUPPORT THE DIRECTOR’S INTERPRETATION.
A. A Review of The Legislative History is Not Only Improper, but It is
Also Not Helpful.
As set forth above, the plain reading of Section 19-6-108(10) is unambiguous and supports
PPR’s interpretation. Therefore, it would be improper for the Executive Director to consider the
legislative history. See 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.”). Indeed, “[a] statute
susceptible to competing interpretations may nevertheless be unambiguous if the text of the act as
a whole, in light of related 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.
The text of Section 19-6-108(10)(a) and (b) makes all but PPR’s interpretation implausible.
Even if the statute were ambiguous; however, the legislative history does not support the
Director’s interpretation and should not be considered. Once again, to support his argument, the
Director infers substantive terms not in the statute. (Director’s Motion, p. 12). This is improper.

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See Bryner, 2018 UT 52, ¶ 21 (holding 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.”) (emphasis added).
Specifically, the Director states Section (10)(b) “place[s] limits on the capacity of commercial
landfills and requires them to evaluate their proposed commercial capacity against all other
capacity, commercial and noncommercial.” (Director’s Motion, p. 12 n.4) (emphasis added.) But
that is not what Section (10)(b) says. There is no reference in the statute to noncommercial
landfills, and the Director’s mischaracterization of the statute cannot be ignored. Regrettably for
the Director, the text of Section (10) is limited to “commercial” landfills.
The Director further argues that because “at least some legislators were concerned with the
possibility of Utah becoming the ‘dumping ground’ for the nation’s solid waste . . . [t]he
Legislature believed that additional oversight for commercial landfills than noncommercial
landfills would reduce this possibility.” (Director’s Motion, p. 13.) Heavier oversight of
commercial landfills supports PPR’s reading that Section 10(b)(i) does not consider
noncommercial capacity. But the other problem with the Director’s argument is that the
Legislature also did not want Section 10 to violate the dormant Commerce Clause. (See
PPRFR000005-15, 63-76.) And the Director’s interpretation of the statute does just that—it
protects existing Utah commercial landfills from interstate competition. (See Petition, pp. 18-26.)
And so, the legislative history confirms the Legislature intends Section (10)(b) to be interpreted in
a manner that avoids a dormant Commerce Clause violation.
Regardless, the Legislature’s approval to change PPR’s landfill to commercial (see
Petition, p. 10) and its approval of the two other commercial landfills (id., pp. 12-13)—all three
approvals came after the Legislature had amended Section 10—undermine the Director’s argument

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that the Legislature did not want to make Utah into a solid waste dumping group for the country,
at least as to northern Utah. Thus, the legislative history is not helpful and in no way supports the
Director’s interpretation but does support PPR’s constitutional avoidance argument.
B. The Canon of Constitutional Avoidance Further Supports Acceptance
of PPR’s Interpretation.
In its Opposition Memorandum to the Director’s Motion to Dismiss and PPR’s Motion,
adopted by reference pursuant to Utah R. Civ. P. 10(c), PPR fully briefed that constitutional
avoidance requires the Executive Director to accept PPR’s interpretation of Section 10(b)(i). In
short, if the Executive Director finds the Director’s interpretation of Section 19-6-108(10) to be
plausible (it isn’t), then the canon of constitutional avoidance bars the Executive Director from
accepting that interpretation to avoid a violation of the dormant Commerce Clause.
CONCLUSION
Based on the foregoing, the ALJ should recommend that the Executive Director deny the
Director’s Motion and grant PPR’s Motion.
DATED this 6th day of March 2025.
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

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CERTIFICATE OF SERVICE
I hereby certify that on March 6, 2025, I caused a true and correct copy of the foregoing
to be emailed to the following:
Craig Anderson
Assistant Attorney General for Executive Director
[e-mail]

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

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

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

Administrative Proceedings Records Officer
Environment Division
[e-mail]

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

/s/ Carol MacKay