2023 UT App 58

THE UTAH COURT OF APPEALS

FRIENDS OF GREAT SALT LAKE,

Petitioner,

v.

DEPARTMENT OF ENVIRONMENTAL QUALITY,

DIVISION OF WASTE MANAGEMENT AND RADIATION CONTROL,

AND PROMONTORY POINT RESOURCES LLC,

Respondents.

Opinion

No. 20210589-CA

Filed May 25, 2023

Original Proceeding in this Court

Charles R. Dubuc Jr., Attorney for Petitioner

Sean D. Reyes, Andrew Dymek, and 

Raymond Wixom, Attorneys for State Respondents

Bradley R. Cahoon, Lyndon R. Bradshaw, and 

Tyler R. Cahoon, 

Attorneys for Promontory Point Resources LLC 

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

ORME, Judge:

¶1 Soon after purchasing a landfill near the Great Salt Lake, 

Promontory Point Resources LLC (PPR) sought to relocate a 

landfill cell, which required a permit modification. The Director 

of the Division of Waste Management and Radiation Control (the 

Division) approved the modification. Because the cell’s relocation 

caused the landfill’s existing groundwater monitoring system to 

no longer be compliant with regulatory requirements, PPR then 

sought to again modify the permit to install four new monitoring 

wells—one upgradient and three downgradient from the new 
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cell. During the public comment period, Friends of Great Salt Lake 

(Friends) and other entities raised concerns that the proposed 

groundwater monitoring system would be insufficient to detect 

leakage from the cell to the Great Salt Lake.

¶2 The Director eventually approved PPR’s requested permit 

modification, and Friends subsequently petitioned the Executive 

Director of the Department of Environmental Quality (DEQ) to 

review the approval. The Executive Director ultimately issued a 

final order affirming the permit modification approval, and 

Friends now seeks judicial review of the final order. Because 

neither of the alleged errors Friends raises in its petition for 

review resulted in substantial prejudice, we decline to disturb the 

Executive Director’s final order.

BACKGROUND

¶3 PPR holds a DEQ-issued permit to operate a landfill that 

is located on the Promontory Peninsula of the Great Salt Lake. 

The initial permit for the landfill was issued to a prior owner

in 2004 and was renewed in 2011. PPR acquired the landfill in 

2015 and became the permittee in 2016. Also in 2016, PPR sought 

to modify the permit “to change the location and design of what 

is now Cell 1A,”1 which modification the Director approved in 

March 2017. Construction of Cell 1A was completed in December 

2017. 

¶4 Because the two existing downgradient monitoring 

wells—which had formed part of the landfill’s groundwater 

monitoring system—were not within 500 feet of Cell 1A’s new 

1. DEQ explains that a “cell” is “a discrete volume (e.g., pit) with 

a liner for storing waste.”
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location, as is required by regulation,2 PPR filed a request with the 

Division in October 2017 to modify its groundwater monitoring

system. The requested modification involved the installation of

three new downgradient monitoring wells within 500 feet of Cell 

1A, as well as one new upgradient well.

¶5 The Director conducted a public comment period on the 

requested permit modification in January and February 2018. 

Friends3 and other concerned entities submitted comments 

suggesting that the new groundwater monitoring system was 

inadequate to detect landfill contamination that might reach the 

Great Salt Lake. Among other things, they expressed concern that 

the new system insufficiently addressed the fractured bedrock 

beneath Cell 1A, “which creates natural pathways for leachate 

and associated toxins to contaminate groundwater and for that 

contamination to spread” to the Great Salt Lake. In support of the

claim that the bedrock beneath Cell 1A was fractured, Friends 

2. Rule R315-308-2(2) of the Utah Administrative Code provides,

The ground water monitoring system must consist 

of at least one background or upgradient well and 

two downgradient wells, installed at appropriate 

locations and depths to yield ground water samples 

from the uppermost aquifer and all hydraulically 

connected aquifers below the facility, cell, or unit.

The downgradient wells shall be designated as the 

point of compliance and must be installed at the 

closest practicable distance hydraulically down 

gradient from the unit boundary not to exceed 150 

meters (500 feet) and must also be on the property 

of the owner or operator[.]

3. According to its public comment, Friends “is a non-profit 

organization that has, as its mission, the preservation and 

protection of the Great Salt Lake ecosystem as well as Great Salt 

Lake’s watershed.”
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relied on two prior studies conducted at the landfill: (1) a 2002

“geotechnical/geologic study” conducted by Applied 

Geotechnical Engineering Consultants, Inc. (AGEC) and (2) a

2015–2016 study conducted by Tetra Tech BAS (Tetra Tech) that 

“included a review of the available data as well as an initial field 

investigation and associated laboratory evaluation” and also 

included a geotechnical engineering report.

¶6 PPR installed the four new monitoring wells in October

2018. In December, the Director invited PPR to submit reply 

comments. In support of its position, PPR submitted, among other 

things, a 287-page hydrogeologic study prepared in 2018 by 

Loughlin Water Associates LLC (Loughlin) that summarized “the 

findings of a hydrogeologic assessment . . . which included the 

drilling, construction and testing of [the] four new monitoring 

wells.” As part of this, the Loughlin study analyzed core samples 

that were drilled at each of the new well locations, ranging in 

depth from 101 to 149 feet. None of the core samples revealed 

bedrock—much less fractured bedrock—as Friends claimed. 

Instead, the core samples “indicate[d] that Lake Bonneville[4]

deposits range in thickness from 20 to 30 feet and overlie an 

extensive semi-consolidated to consolidated fanglomerate 

4. “Today’s Great Salt Lake is a shallow, salty remnant of ancient 

Lake Bonneville.” Great Salt Lake & Lake Bonneville, Utah 

Geological Survey, https://geology.utah.gov/popular/great-saltlake [https://perma.cc/F553-LB7F]. Although prehistoric Lake 

Bonneville was a freshwater lake, “[m]uch of the salt now 

contained in Great Salt Lake was originally in the water of Lake 

Bonneville.” Id. “Other relics of Lake Bonneville are Utah Lake, 

Sevier Lake, and the Great Salt Lake Desert which contains the 

famous Bonneville Salt Flats.” Id.
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deposit,”5 “which is uniform and unfractured and contains 

substantial amounts of silt and clay.” In sum, the Loughlin study 

concluded that “[t]he landfill and the aquifer beneath the landfill 

are within an unfractured, low permeability[6] fanglomerate 

deposit.”

¶7 The Loughlin study also reviewed the AGEC and Tetra 

Tech studies and disagreed with some of their observations and 

conclusions. The Loughlin study stated that the drilling 

equipment used in both studies was not sufficient to drill through 

bedrock and disagreed that the bedrock—which it concluded was 

located at least 149 feet below the surface—was highly fractured.

The Loughlin study suggested that “[t]he fanglomerate deposit 

may have been identified in previous site investigations as 

‘weathered bedrock.’”7

5. Fanglomerate is “[a] sedimentary rock of heterogenous 

materials that were originally deposited in an alluvial fan and 

have since become cemented into solid rock.” Fanglomerate, 

Dictionary of Geological Terms 178 (Robert L. Bates & Julia A. 

Jackson eds., 3d ed. 1984).

6. Permeability is “[t]he capacity of a porous rock, sediment, or 

soil for transmitting a fluid; it is a measure of the relative ease of 

fluid flow under unequal pressure.” Permeability, Dictionary of 

Geological Terms 377 (Robert L. Bates & Julia A. Jackson eds., 3d 

ed. 1984).

7. In response to a subsequent question from the Division, 

Loughlin explained that although intensely fractured bedrock can 

be observed at the surface around the landfill, it did not reflect 

subsurface conditions. It stated that “much of the fracturing seen 

in the bedrock at the surface is the result of a freeze-thaw action 

induced by Lake Bonneville on the shoreline, which is 

(continued...)
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¶8 In April and May 2019, the Division submitted several 

questions to PPR regarding the Loughlin study. In relevant part, 

the Division asked PPR to demonstrate that the three new 

downgradient wells had a 95 percent detection rate. The Division

suggested that PPR could achieve this through a certain form of

modeling. PPR responded that “[n]either modeling of well 

placements nor a 95 percent detection rate at the landfill is 

required by [Utah Administrative Code rule] R315-308 or any 

other law or regulation.” The Division subsequently sent PPR a 

letter in which it “agree[d] that groundwater modeling is not 

required by the Rule” but noted that “a groundwater flow and 

transport model, built on the basis of the interface of the 

hydrogeologic components listed in [federal regulations], could 

help ensure appropriate well spacing and the number of wells 

needed to detect potential releases.” Loughlin responded by letter 

on PPR’s behalf stating that “(i) there are no rules governing a 

modeling approach; (ii) modeling would require a number of 

assumptions with no regulatory basis; (iii) there is not enough 

data to calibrate the modeling; and (iv) running the model under 

different scenarios would be extremely burdensome.” The 

Division offered no pushback to this response.

characterized by random surface fracturing and a lack of 

conjugate joint sets.” Loughlin further pointed to a pilot hole that 

had been drilled for an onsite production well, which was 

constructed to provide water for landfill operations. The pilot hole

first “identified bedrock at a depth of about 168 feet.” Regarding 

this bedrock, the Loughlin study further concluded that

(1) the quartzite bedrock penetrated by the PPR 

Production Well is relatively unfractured, and that 

the fractures that are present have been filled by 

gypsum and clay, (2) this formation is of extremely 

low permeability, and (3) the gradient from the 

bedrock is upward because the aquifer is under 

confined conditions.
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¶9 The Director also invited those who had previously 

provided public comment “to submit surreply comments to PPR’s 

reply comments.” Friends submitted a review that raised 

concerns about the sufficiency of the Loughlin study.

¶10 In July 2019, the Director approved PPR’s request to 

modify its permit. In so doing, the Director stated that he

“believes these wells are sufficient to show background water 

conditions and to detect releases from the landfill.” The Director

further stated that “[a]lthough the Division did suggest 

development of a groundwater model to determine the number 

of downgradient wells, it was concluded that some input 

parameters were ill-defined, so that a specific inference from a 

groundwater model would be too subjective to be useful in 

making a decision.”

¶11 Friends filed a petition for review with the Executive 

Director and later requested that an administrative law judge be 

appointed in the matter. The Executive Director approved the 

request and appointed an administrative law judge (the ALJ) to 

conduct a permit review adjudicative proceeding. See Utah Code 

Ann. § 19-1-301.5(5)(a) (LexisNexis 2019). In its brief to the ALJ, 

Friends made, among others, the following two arguments. First, 

Friends contended that the ALJ should review the Director’s 

approval of the permit modification under a “substantial 

evidence” standard instead of a “clearly erroneous” standard. 

Second, Friends challenged the Director’s finding that it was 

unlikely that there were any hydraulically connected aquifers 

below Cell 1A, which satisfied the regulatory requirement that, 

with our emphasis, Cell 1A’s groundwater monitoring system be 

“installed at appropriate locations and depths to yield 

groundwater samples from the uppermost aquifer and all 

hydraulically connected aquifers below” Cell 1A. See Utah Admin. 

Code R315-308-2(2). The Director based this finding on the boring 

log information documented in the Loughlin study and the lack 

of strong evidence indicating otherwise. 
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¶12 In making this second challenge, Friends raised what has 

come to be known in this matter as “the Geertsen claim.” Under 

the Geertsen claim, Friends argued that the Tetra Tech study 

showed “the stacking of formations from top to bottom as: 

Alluvium/Geertsen Canyon Quartzite/Browns Hole 

Formation/Mutual Formation.” But because the Loughlin study 

showed only a stacking of “Alluvium/Fanglomerate/?/?,” Friends 

asserted that “we are left to assume that PPR has substituted 

fanglomerate for the Geertsen Canyon Formation, and that 

therefore directly below the fanglomerate/Geertsen Canyon 

formation lies the Browns Hole formation,” which the Tetra Tech 

study described as “highly- to intensely-fractured/jointed.” 

Accordingly, as summarized by the ALJ, Friends argued that 

“[b]ased on record evidence,” the only conclusions the Director 

could have properly reached were:

(1) the Geertsen Canyon Quartzite bedrock 

formation is the same as what PPR has described as 

the fanglomerate layer;

(2) directly below the fanglomerate/Geertsen 

Canyon Quartzite bedrock formation containing the 

shallow aquifer at the landfill site lies the 

highly-fractured, largely uncemented Browns Hole 

Formation;

(3) there must be a hydraulic connection between 

the Browns Hole Formation and the 

fanglomerate/Geertsen Canyon Quartzite bedrock 

formation containing the shallow aquifer directly 

above it;

(4) because of the hydraulic connection between the 

two formations, the Browns Hole Formation must 

be considered to be part of the uppermost aquifer 

and the Director must require PPR to monitor that 
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formation as well as, possibly, the Mutual 

Formation that lies directly below the Browns Hole 

Formation; and 

(5) because PPR’s current monitoring wells do not 

monitor the Browns Hole Formation, the Director 

should have found that PPR’s monitoring system is 

deficient.

¶13 In opposition, the Director primarily argued that (1) the

clear error standard of review—and not the substantial evidence 

standard—should be applied to the decision to approve the 

permit modification and (2) the Geertsen claim was untimely. 

Concerning the latter argument, the Director asserted that the 

Geertsen claim was untimely because (a) it was not raised during 

the public comment period, as required by Utah law, see Utah 

Code Ann. § 19-1-301.5(4)(a) (“If a public comment period was 

provided during the permit application process . . . , a person who 

challenges an order or determination may only raise an issue or 

argument during the special adjudicative proceeding that . . . the 

person raised during the public comment period[.]”) and 

(b) Friends raised it for the first time in its brief and did not 

include it in its petition for review, in contravention of the 

applicable rule, see Utah Admin. Code R305-7-213(1)(f) (“Matters 

not raised in the petition may not be raised in the opening brief.”). 

Additionally, the Director disputed the Geertsen claim on the 

merits, pointing to the Loughlin study in support of the 

conclusion that the fanglomerate is unfractured.

¶14 Following the adjudicative proceeding, the ALJ issued a

“Statement of Material Facts, Conclusions of Law and 

Recommended Order on the Merits.” In relevant part, the ALJ 

concluded that “the standard of review for the Director’s factual 

determinations in this special adjudicative proceeding is the 

clearly erroneous standard, as prescribed in Utah Code 

§ 19-1-301.5(14)(b), and that the substantial evidence standard of 
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20210589-CA 10 2023 UT App 58

Subsection 63G-4-403(4)(g) does not apply to special adjudicative 

proceedings under Utah Code § 19-1-301.5.”

¶15 Concerning the Geertsen claim, the ALJ first rejected the 

Director’s comment-period timeliness argument on the ground 

that the Geertsen claim “was not reasonably ascertainable before 

or during the public comment period.” See Utah Code Ann. 

§ 19-1-301.5(6)(e)(ii). But the ALJ agreed that the Geertsen claim 

was untimely because Friends had not raised the issue in its 

petition for review and had raised it for the first time during

briefing. Accordingly, the ALJ recommended dismissal of the 

Geertsen claim, with prejudice.

¶16 Nevertheless, despite concluding that the Geertsen claim 

was untimely, the ALJ held that “[t]he Director did not err in 

determining that the bedrock beneath the landfill is cemented and 

[that] there is no hydraulic connection between the shallow 

aquifer and bedrock.” The ALJ noted that “the Director 

determined, based on information in the Loughlin study, 

Loughlin’s responses to the Director’s comments, and the 

Director’s expertise, that it is unlikely there is flow from the 

alluvium ([fanglomerate] aquifer) at the landfill into the bedrock” 

and “that there is no site-specific evidence of bedrock fracturing.” 

The ALJ then stated, “Friends raises issues and makes speculative 

and general statements, but does not offer persuasive, specific 

evidence of a hydraulic connection between the shallow 

([fanglomerate]) aquifer and the bedrock.”8 Accordingly, the ALJ 

8. The ALJ noted that “the Loughlin Study disagrees with the 

[Tetra Tech] and AGEC[] studies[’] observations and conclusions, 

stating that they did not use drilling equipment sufficient to drill 

through bedrock in test pits or monitoring wells (except

[monitoring well 5]) and that statements that the bedrock was 

highly fractured are inaccurate” based on core samples. 

Additionally, the Loughlin study opined that the highly fractured 

(continued...)
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20210589-CA 11 2023 UT App 58

held that the Director did not clearly err in determining “that the 

bedrock beneath the landfill is cemented and there is no hydraulic 

connection between the shallow aquifer and the bedrock.”

¶17 The ALJ also concluded that “[t]he Director’s 

determination that the three downgradient monitoring wells are 

sufficient to detect any releases from the landfill is a factual, 

technical, and scientific determination that is supported by the 

record.” Specifically, the ALJ pointed to, among other things, the 

Director’s following statements:

• “The upgradient and downgradient wells appear to 

monitor the same hydrologic unit (fanglomerate), as 

evident from the boring logs presented in the [Loughlin

study].”

• “Although the Division did suggest development of a 

groundwater model to determine the number of 

downgradient wells, it was concluded that some input 

parameters were ill-defined, so that a specific inference 

from a groundwater model would be too subjective to be 

useful in making a decision.”

• “The [Loughlin study] provides evidence that 

groundwater samples taken from the monitoring wells are 

representative of the aquifer condition below the landfill.”

The ALJ also pointed to the following information from the 

Loughlin study and Loughlin’s responses to the Division’s

questions in support of the Director’s conclusion that the three 

downgradient monitoring wells were sufficient to detect 

contamination:

surface bedrock referred to in the other studies was limestone 

bedrock, which was not detected underneath the surface.
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• “[T]he spacing of the three downgradient wells is 

appropriate, given the low particle velocities in the 

fanglomerate aquifer beneath the landfill.”

• “The hydrogeologic characteristics of the landfill area have 

been defined and show that the wells meet the 

requirements of R315-308.”

• “The groundwater gradient and flow direction beneath the 

cell is south-southwest, as demonstrated by groundwater 

level measurements obtained between October 2018 and 

May 2019. Measurements obtained show [the three 

downgradient wells] are downgradient of the cell. 

Variations in groundwater levels and flow direction occur, 

but [the three downgradient wells] continue to be 

downgradient. Additionally, [one of the three 

downgradient wells] is directly downgradient of the 

leachate collection sump, the lowest collection point for the 

landfill drainage net and, therefore, is the most probable 

location for detection of a potential release.”

Finally, the ALJ stated that Friends “does not offer persuasive, 

specific evidence of fractured bedrock, complex geology, or that 

the wells will not detect any potential releases from the landfill.”

¶18 Following further comments from the parties, the 

Executive Director issued a written “Final Order Adopting 

Recommended Decision Dismissing Adjudicative Proceedings” 

in which the Executive Director agreed with and adopted the 

ALJ’s “Findings of Fact, Conclusions of Law, and Recommended 

Order as written.” In relevant part, the Executive Director 

adopted the following findings and conclusions of the ALJ:

• “Since Friends failed to preserve its claim that 

Fanglomerate is the Geertsen Canyon Formation, this

claim is dismissed, with prejudice.”
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• “The Director did not err in determining that the

Monitoring Well System complies with Utah 

Administrative Code R315-308-2 and that [PPR] was not 

required to conduct modeling.”

• “The Director did not err in issuing the permit 

modification.”

• “The Director did not err in determining that the bedrock 

beneath the landfill is cemented and there is no hydraulic 

connection between the shallow aquifer and bedrock.”

• “The Director did not err in determining that the three 

downgradient monitoring wells are sufficient to detect any 

releases from Cell 1A.”

¶19 Friends now seeks judicial review of the Executive 

Director’s final order.

ISSUES AND STANDARDS OF REVIEW

¶20 Our review of the Executive Director’s final order is 

governed by the Utah Administrative Procedures Act (UAPA). 

See Utah Code Ann. § 19-1-301.5(16)(c)(i) (LexisNexis 2019)

(“During judicial review of a dispositive action, the appellate 

court shall . . . review all agency determinations in accordance

with Subsection 63G-4-403(4)[.]”); id. § 19-1-301.5(16)(a). See also

Utah Physicians for a Healthy Env’t v. Executive Dir. of the Utah 

Dep’t of Env’t Quality, 2016 UT 49, ¶ 12, 391 P.3d 148 (“Our 

authority to review final agency adjudications is set forth in part 

4 of [UAPA].”). Under UAPA, an appellate court may grant relief 

only if a petitioner establishes (1) the existence of an error 

enumerated in section 63G-4-403(4) and (2) that the error 

“substantially prejudiced” the petitioner. See Utah Code Ann. 

§ 63G-4-403(4) (LexisNexis 2019); Onysko v. Department of Env’t 
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20210589-CA 14 2023 UT App 58

Quality, 2020 UT App 51, ¶ 31, 463 P.3d 669, cert. denied, 466 P.3d 

1072 (Utah 2020).

¶21 Under the first prong, “unless section 63G-4-403(4) 

incorporates a specific standard of review” for an enumerated 

error, “we are free to apply our traditional approach for selecting 

an appropriate standard of review, depending on whether the 

agency action can be characterized as a question of law, a question 

of fact, or a mixed question of law and fact.” Onysko, 2020 UT App 

51, ¶ 31 (quotation simplified). Additionally, we are required to 

“uphold all factual, technical, and scientific agency 

determinations that are not clearly erroneous based upon the 

petitioner’s marshaling of the evidence.” Utah Code Ann. 

§ 19-1-301.5(16)(c)(ii).

¶22 Under the second prong, “a party has been substantially 

prejudiced if the alleged error was not harmless.” Onysko, 2020 UT 

App 51, ¶ 66 (quotation simplified). 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. (quotation simplified).

¶23 Here, Friends first argues the Executive Director and the 

ALJ9 erred in holding that the appellate standards of review 

provided for under section 63G-4-403(4) of the Utah Code did not 

apply to their review of the Director’s permit modification 

decision. Second, Friends argues the Executive Director erred in 

holding, based on rule R305-7-213(1)(f) of the Utah 

Administrative Code, that the Geertsen claim was untimely and 

9. When the Executive Director adopts an administrative law 

judge’s recommended final order, the conclusions and analyses 

become part of the Executive Director’s final, appealable order.

See Living Rivers v. Executive Dir. of the Utah Dep’t of Env’t Quality, 

2017 UT 64, ¶ 35, 417 P.3d 57.
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20210589-CA 15 2023 UT App 58

in dismissing it on that ground.10 Both issues present questions of 

law and therefore fall within the ambit of section 63G-4-403(4)(d)

of the Utah Code, which states that an appellate court shall grant 

relief if “the agency has erroneously interpreted or applied the 

law” and such error resulted in substantial prejudice. DEQ, by 

statute, “has been granted substantial discretion to interpret its 

governing statutes and rules.” See Utah Code Ann.

§ 19-1-301.5(16)(c)(i). But “this grant of authority does not turn an 

agency’s application or interpretation of the law into the type of 

action that would warrant an abuse of discretion standard.” Sevier

Citizens for Clean Air & Water, Inc. v. Department of Env’t Quality, 

2014 UT App 257, ¶ 5, 338 P.3d 831 (quotation simplified).

“Rather, we apply our traditional approach in selecting the 

appropriate standard of review based on whether [DEQ’s] 

decision qualifies as a finding of fact, a conclusion of law, or a 

determination of a mixed question of law and fact.” Id. (quotation 

simplified). See Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 21, 

308 P.3d 461 (stating that because section 63G-4-404(4)(d) “does

not imply a standard of review,” “we are free to apply our

traditional approach for selecting an appropriate standard of

review”).

10. Both DEQ and PPR assert that Friends did not preserve this 

issue for review “because Friends didn’t oppose the Director’s 

argument to the ALJ that Rule 305-7-213(1)(f) mandated dismissal 

of the Geertsen Claim.” But because we resolve this issue on the 

merits in DEQ’s and PPR’s favor, we need not address their 

preservation argument. See State v. Kitches, 2021 UT App 24, ¶ 28, 

484 P.3d 415 (“If the merits of a claim can easily be resolved in 

favor of the party asserting that the claim was not preserved, we 

readily may opt to do so without addressing preservation.”)

(quotation simplified), cert. denied, 496 P.3d 718 (Utah 2021).
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ANALYSIS

I. UAPA Standards of Review

¶24 Section 19-1-301.5, a provision of Utah’s statutory 

Environmental Quality Code, “governs special adjudicative 

proceedings,” Utah Code Ann. § 19-1-301.5(2) (LexisNexis 2019), 

which it defines, in relevant part, as “proceeding[s] under this 

section to resolve a challenge to a . . . permit order,” id.

§ 19-1-301.5(1)(g)(i). Friends argues that, under this statute, the 

Executive Director and the ALJ erred in not applying the appellate 

standards of review provided for in UAPA’s section 63G-4-403(4).

See id. § 19-1-301.5(16)(c)(i) (“During judicial review of a 

dispositive action, the appellate court shall . . . review all agency 

determinations in accordance with Subsection 63G-4-403(4), 

recognizing that the agency has been granted substantial 

discretion to interpret its governing statutes and rules[.]”).

Although section 19-1-301.5(16)(c)(i) is expressly limited to 

“judicial review of a dispositive action,”11 id. (emphases added), and 

although, with a few limited exceptions, UAPA does not apply to 

permit review adjudicative proceedings, see id. § 19-1-301.5(3), 

Friends contends that section 19-1-301.5(16)(c)(i) nonetheless 

extends to such proceedings by virtue of “DEQ’s precedent and 

prior practice” that “require the ALJ and Executive Director to 

function as appellate reviewers.”12 Accordingly, Friends asserts 

11. A “[d]ispositive action” is defined as “a final agency action 

that (i) the executive director takes as part of a special adjudicative 

proceeding; and (ii) is subject to judicial review.” Utah Code Ann. 

§ 19-1-301.5(1)(a) (LexisNexis 2019).

12. In support of its contention that it is the established precedent 

of DEQ for administrative law judges and the Executive Director 

to apply UAPA appellate standards in permit review adjudicative 

proceedings, Friends cites several prior DEQ orders dating back 

(continued...)
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that in light of DEQ’s established precedent, the Executive 

Director and the ALJ did “not have the discretion to ignore the 

clear mandate imposed by the Legislature” to apply the appellate 

standards under UAPA section 63G-4-403(4) to their review of the 

Director’s decision.13 See Salt Lake Citizens Cong. v. Mountain States 

Tel. & Tel. Co., 846 P.2d 1245, 1253 (Utah 1992) (“Rules of law 

developed in the context of agency adjudication are as binding as 

to 2014 and 2015, including an order in which the then-Executive 

Director stated, “I am bound by the same standard of review as 

the appellate court concerning factual determinations.” We note, 

however, that our Legislature has since amended section 

19-1-301.5 to require the Executive Director and appellate courts 

to review “factual, technical, and scientific agency 

determinations” for clear error, instead of for substantial 

evidence, as had been the case at the time the cited orders were 

issued. Compare Utah Code Ann. § 19-1-301.5(13)(b), (14)(c)(ii)

(LexisNexis 2013), with id. § 19-1-301.5(14)(b), (16)(c)(ii) (2019). 

Under UAPA’s section 63G-4-403(4)(g), appellate courts are 

required to review factual findings for substantial evidence.

13. Alternatively, Friends argues that “[e]ven if DEQ’s precedent 

does not have the force and effect of a rule, the Executive 

Director’s decision that appellate standards of review no longer 

apply to special adjudicative proceedings is contrary to DEQ’s 

prior practice, in violation of Subsection 63G-4-403(4)(h)(iii).” See 

Utah Code Ann. § 63G-4-403(4)(h)(iii) (LexisNexis 2019) (stating 

that a petitioner may be entitled to relief if “the 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”). 

Because we hold that Friends was not substantially prejudiced by 

the Executive Director’s alleged failure to review the Director’s 

findings for substantial evidence, this argument also necessarily 

fails.
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 18 2023 UT App 58

those promulgated by agency rule making. Thus, rules of law 

established by adjudication apply to the future conduct of all 

persons subject to the jurisdiction of an administrative agency, 

unless and until expressly altered by statute, rule, or agency 

decision.”) (citation omitted).

¶25 Although Friends generally references the various 

standards of review provided under UAPA section 63G-4-403(4)

in its argument, its claim of error is limited to challenging the 

Executive Director’s decision not to set aside the Director’s 

findings that supported his approval of PPR’s requested permit 

modification. Specifically, Friends contends that “the Director 

offered no record evidence in support of his decision not to 

require PPR to demonstrate that its monitoring system would 

adequately detect potential leaks” and in support of the Director’s 

“disregard of the Division’s statements that three wells were not 

enough given the size of” Cell 1A. See Utah Code Ann. 

§ 19-6-108(9)(b) (LexisNexis Supp. 2022) (stating that “the 

Director may not approve a . . . waste operation plan” without 

“evidence that the transfer, treatment, or disposal of 

nonhazardous solid waste or treatment, storage, or disposal of 

hazardous waste will not be done in a manner that may cause or 

significantly contribute to an increase in mortality, an increase in 

serious irreversible or incapacitating reversible illness, or pose a 

substantial present or potential hazard to human health or the 

environment”). In the absence of modeling—which Friends also 

argues the Director erroneously did not require—Friends asserts 

that “[t]he Director was obligated to require PPR to provide some

demonstration that its system was sufficient to meet the legal 

requirements.”14 In sum, Friends argues that “[b]ecause the ALJ 

14. Friends alternatively argues that we “should determine that 

the Director failed to meet the substantial evidence and clearly 

erroneous standards” because “[i]n his decision, the Director 

(continued...)
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 19 2023 UT App 58

and the Executive Director failed in their obligation to determine 

whether the Director’s decision was supported by substantial 

evidence, the Executive Director’s endorsement of the Director’s 

decision was clearly erroneous.” Accordingly, Friends’ argument 

implicates only the ALJ’s and the Executive Director’s failure to

conduct a review under UAPA section 63G-4-403(4)(g), which 

imposes the substantial evidence standard of review for findings 

of fact. See Murray v. Utah Labor Comm’n, 2013 UT 38, ¶¶ 19–20, 

308 P.3d 461.

¶26 We need not resolve the merits of Friends’ argument. Even 

assuming, without deciding, that the ALJ and the Executive 

Director erred in not reviewing the Director’s factual findings for 

substantial evidence, such error did not substantially prejudice 

Friends because the Director’s factual findings withstood the 

ALJ’s and the Executive Director’s clear error review. See generally

offered no record evidence in support of his decision not to 

require PPR to demonstrate that its monitoring system would 

adequately detect potential leaks.” But our review is not of the 

Director’s decision, but of the Executive Director’s final order. See 

Utah Code Ann. § 19-1-301.5(16)(a) (LexisNexis 2019) (“A party 

may seek judicial review in the Utah Court of Appeals of a 

dispositive action in a special adjudicative proceeding[.]”)

(emphasis added); Utah Physicians for a Healthy Env’t v. Executive 

Dir. of the Utah Dep’t of Env’t Quality, 2016 UT 49, ¶ 17, 391 P.3d 

148 (noting that a party may seek judicial review only of a 

dispositive agency action and, accordingly, “[t]o succeed on 

appeal, the Petitioners must take issue with and demonstrate 

error in a final agency action”) (emphasis in original). Because 

Friends does not address the evidence discussed by the ALJ

(whose recommended order the Executive Director adopted), see 

supra ¶ 17, much less marshal any evidence as part of its challenge, 

Friends has not carried its burden of persuasion on this issue. See 

Utah Physicians, 2016 UT 49, ¶¶ 19–20.
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20210589-CA 20 2023 UT App 58

Utah Code Ann. § 63G-4-403(4) (stating that a petitioner is entitled 

to relief only if the petitioner “has been substantially prejudiced 

by” certain enumerated errors).

¶27 As discussed above, the ALJ reviewed the Director’s 

factual findings for clear error.15 Under that standard, a finding is 

clearly erroneous if it is “not adequately supported by the record, 

resolving all disputes in the evidence in a light most favorable to 

the [agency’s] determination.” Salt Lake City Corp. v. Haik, 2019 UT 

App 4, ¶ 43, 438 P.3d 913 (emphasis added) (quotation otherwise

simplified), aff’d, 2020 UT 29, 466 P.3d 178. This standard is 

remarkably similar to the substantial evidence standard. That is, 

“substantial evidence is more than a mere scintilla of evidence 

though something less than the weight of the evidence, and the 

substantial evidence test is met when a reasonable mind might 

accept as adequate the evidence supporting the decision.” Onysko 

15. We note that even if Friends is correct that the Executive 

Director is governed, under prior agency precedent, by the same 

standards of review as appellate courts, the Executive Director 

would have nonetheless been required to review the challenged 

factual findings for clear error either in place of or in addition to 

the substantial evidence standard of section 63G-4-403(4)(g).

Section 19-1-301.5(16)(c)(ii)—which also governs judicial review 

of a dispositive agency action under that chapter—requires 

appellate courts to “uphold all factual, technical, and scientific 

agency determinations that are not clearly erroneous based upon 

the petitioner’s marshaling of the evidence.” Utah Code Ann. 

§ 19-1-301.5(16)(c)(ii) (LexisNexis 2019). Although we do not 

definitively decide how section 19-1-301.5(16)(c)(ii) of the 

Environmental Quality Code interacts with UAPA section 

63G-4-403(4)(g)—which is made applicable to our review by 

virtue of section 19-1-301.5(16)(c)(i)—it is clear that the Executive 

Director would, in any event, have been required to review the 

factual determinations for clear error.
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 21 2023 UT App 58

v. Department of Env’t Quality, 2020 UT App 51, ¶ 34, 463 P.3d 669 

(emphasis added) (quotation otherwise simplified), cert. denied, 

466 P.3d 1072 (Utah 2020). See EAGALA, Inc. v. Department of 

Workforce Services, 2007 UT App 43, ¶ 8, 157 P.3d 334 (defining 

substantial evidence “as such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion”) 

(quotation simplified). Importantly, both standards require only 

that the findings of fact be adequately supported by the record, 

which affords significant deference to the agency’s factual 

determinations. See Sawyer v. Department of Workforce Services, 

2015 UT 33, ¶ 9, 345 P.3d 1253 (stating that the clearly erroneous 

standard of review is “highly deferential”); Utah Chapter of the 

Sierra Club v. Board of Oil, Gas, & Mining, 2012 UT 73, ¶ 24, 289 P.3d 

558 (stating that under the substantial evidence standard, “we 

give great deference to the [agency’s] factual findings”). Indeed, 

this court has, in prior decisions, held that satisfaction of the 

substantial evidence standard likewise satisfied the clear error 

standard. See, e.g., Hexcel Corp. v. Labor Comm’n, 2022 UT App 52, 

¶¶ 24, 42, 510 P.3d 310 (concluding that because the Labor 

Commission’s factual determination was supported by 

substantial evidence, it was not clearly erroneous); Deseret Book 

Co. v. Department of Workforce Services, 2018 UT App 50, ¶ 8, 420 

P.3d 109 (“To establish clear error, the challenging party must 

demonstrate that the [agency’s] decision is not supported by 

substantial evidence when viewed in light of the whole record.”) 

(quotation simplified). 

¶28 One difference between the two standards is that under 

clear error review, all disputes in the evidence are resolved “in a 

light most favorable to the [agency’s] determination.” Haik, 2019 

UT App 4, ¶ 43 (quotation simplified). But although the 

substantial evidence standard makes no mention of resolving 

conflicts of evidence in the light most favorable to an agency’s 

finding, it is nonetheless “well recognized that when the evidence 

is disputed, we defer to the agency’s assessment of credibility and 
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 22 2023 UT App 58

resolution of the conflicting evidence.” Onysko, 2020 UT App 51, 

¶ 33 (quotation simplified).

¶29 In any event, to the extent that the substantial evidence 

standard is less deferential than the clear error standard, we are 

not convinced that the difference is sufficient in this case to have 

reasonably likely altered the outcome of the proceeding in 

Friends’ favor. See id. ¶ 66. Friends’ claim of substantial prejudice 

is limited to the assertion that “[h]ad the Executive Director 

applied the correct standard of review, there was a reasonable 

likelihood of a more favorable outcome for Friends on that issue,” 

which it does not support with any persuasive argument or 

analysis.16 This is insufficient to convince us that Friends was 

substantially prejudiced by any alleged failure by the Executive 

Director to review the Director’s factual findings for substantial 

evidence.

¶30 In conclusion, because the substantial evidence standard of 

review does not impose a materially greater burden than the clear 

error standard, it is not reasonably likely that the outcome of the 

proceedings would have been different had the Executive 

Director reviewed the challenged findings for substantial 

evidence under UAPA section 63G-4-403(4)(g).

16. In its reply brief, Friends asserts, without supporting legal 

authority, that “the very nature of the issues raised on appeal in 

this instance demonstrates prima facie evidence of substantial 

prejudice” because “[w]hen a party alleges that the incorrect 

standard of review was applied in the proceeding below, . . . there 

are no circumstances where the result of applying an incorrect 

standard would constitute harmless error.” We disagree. As 

discussed above, failure to review a factual finding for substantial 

evidence where the finding was already reviewed for clear error

presents, at least in this case, one such circumstance.
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 23 2023 UT App 58

II. The Geertsen Claim

¶31 Friends argues that the Executive Director erred in holding 

that the Geertsen claim was not timely under our administrative 

rules, which provide that “[m]atters not addressed in the petition 

may not be raised in the opening brief.” See Utah Admin. Code 

R305-7-213(1)(f). Friends summarizes the Geertsen claim as the 

argument “that, based on the record evidence, the only defensible 

determination the Director could have made was that the aquifer 

was hydraulically connected from the fractured bedrock beneath 

it.” Friends contends that “the Geertsen Claim is no claim at all; it 

is evidence demonstrating the Director’s error in determining that 

hydraulic connectivity does not exist,” which claim it did raise in 

its petition for review. And because “the administrative record 

did not exist until seven months after the petition was filed, 

presenting marshaled demonstrations of error could only be 

accomplished during the merits portion of the proceeding.”

Accordingly, Friends argues that it was “clearly erroneous for the 

Executive Director to classify the Geertsen Claim as a separate 

‘matter’ and then dismiss that matter pursuant to Rule 

305-7-213(1)(f).”

¶32 We need not resolve whether the Executive Director 

properly characterized the Geertsen claim as a separate matter, 

and if she did not, whether this amounted to a misapplication of 

the administrative rule. Friends’ argument suffers from the same 

flaw as its prior argument—Friends has not carried its burden of 

persuasion in establishing that this alleged error substantially 

prejudiced it. See Utah Code Ann. § 63G-4-403(4) (LexisNexis 

2019). That is, Friends has not demonstrated that if the Executive 

Director had considered the Geertsen claim/evidence, it is 

reasonably likely that she would have held that the Director 

clearly erred in finding that the bedrock beneath Cell 1A was 

cemented and that there was, therefore, no hydraulic connection

between the upper aquifer and potential lower aquifers. See

generally id. § 19-1-301.5(14)(b), (16)(c)(ii); Onysko v. Department of 
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 24 2023 UT App 58

Env’t Quality, 2020 UT App 51, ¶ 66, 463 P.3d 669, cert. denied, 466 

P.3d 1072 (Utah 2020). 

¶33 In support of her determination that the Director’s finding

was “adequately supported by the record,” see Salt Lake City Corp. 

v. Haik, 2019 UT App 4, ¶ 43, 438 P.3d 913 (quotation simplified), 

aff’d, 2020 UT 29, 466 P.3d 178, the ALJ provided ten pages of 

analysis discussing the record evidence. The ALJ pointed to the 

Director’s statement that, based on the boring logs presented in 

the Loughlin study, “[t]he upgradient and downgradient wells 

appear to monitor the same hydrologic unit (fanglomerate)” and 

“it is unlikely that there is flow from the alluvium into the 

bedrock.” The ALJ also noted the Director’s conclusion that “no 

site specific evidence has been presented supporting the 

commenters’ concerns that there may be faulting in the bedrock 

beneath the landfill” and that, to the contrary, “evidence from 

core samples obtained during construction of the production well 

indicates fractures are cemented.”

¶34 The ALJ also pointed to, among other things, Loughlin’s 

responses to the Division’s questions as evidentiary support for 

the Director’s findings. Notably, when asked by the Director what

impact “the Geertsen Canyon Quartzite, Browns Hole Formation, 

and Mutual Formation”—which the Loughlin study described as 

“highly to intensely fractured/jointed”—“have on groundwater 

systems and flow,” Loughlin offered the following explanations:

• “Descriptions of bedrock depicted . . . are observations of 

surface outcrops and intensely fractured rocks under 

subaerial conditions that do not reflect conditions of 

subsurface bedrock, as identified during the drilling of the 

PPR Production Well.”

• “Based on data from the PPR Production Well, ‘(1) the 

bedrock is dry to at least 730 feet, (2) the aquifer developed 

by the well is confined, and (3) the bedrock aquifer 
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 25 2023 UT App 58

gradient is upward and because the gradient is upward 

from the much deeper bedrock aquifer, the shallow 

fanglomerate aquifer identified in the vicinity of the 

landfill does not intermingle or flow to the deeper bedrock 

aquifer.’”

• “Drilling and groundwater sampling results from the PPR 

Production Well indicate (1) the quartzite bedrock 

penetrated by the PPR Production Well is relatively 

unfractured, and that the fractures that are present have 

been filled by gypsum and clay, (2) this formation is of 

extremely low permeability,[17] and (3) the gradient from 

the bedrock is upward because the aquifer is under 

confined conditions.”

• “The landfill and the aquifer beneath the landfill are within 

an unfractured, low permeability fanglomerate deposit. 

No bedrock was intercepted beneath the landfill.”

• “Although bedrock is intensely fractured where exposed at 

the ground surface, bedrock in the PPR Production Well 

was dense and hard and relatively unfractured. Where 

fractures were encountered in the PPR Production Well,

they appeared to be filled with clay or mineralization.”

¶35 The ALJ also pointed to Loughlin’s responses to the 

Division’s questions concerning the AGEC and Tetra Tech 

studies. The ALJ noted that “the Loughlin Study disagrees with 

the [Tetra Tech] and AGEC[] studies[‘] observations and 

conclusions, stating,” among other things, that Tetra Tech and 

17. The Loughlin study concluded that the fanglomerate 

formation “has very low permeability, as would be expected in a 

formation that contains an abundance of silt and clayey 

materials,” based on slug tests it performed for the four new 

monitoring wells.
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 26 2023 UT App 58

AGEC “did not use drilling equipment sufficient to drill through 

bedrock in test pits or monitoring wells (except [monitoring 

well 5]) and that statements that the bedrock was highly fractured 

are inaccurate” based on Loughlin’s core samples. Instead, 

Loughlin suggested that “[t]he fanglomerate deposit may have 

been identified in previous site investigations as ‘weathered 

bedrock.’”

¶36 In addressing Friends’ challenges to the Director’s 

findings, the ALJ stated that “[a]lthough Friends marshaled and 

acknowledged some of the evidence, it failed to marshal and 

acknowledge all of the evidence in the record that supports the 

Director’s determination.” For example, the ALJ noted that 

Friends did “not marshal evidence in the Loughlin Study on slug 

tests, aquifer parameters or upward gradient of the bedrock 

aquifer, supporting the Director’s determination that there is no 

hydraulic connection between the shallow aquifer and the 

bedrock.” The ALJ further stated that even without this 

marshaling deficiency, “Friends raises issues and makes 

speculative and general statements, but does not offer persuasive, 

specific evidence of a hydraulic connection between the shallow 

[fanglomerate] aquifer and the bedrock.”

¶37 In light of the record evidence discussed by the ALJ,18

Friends has not carried its burden to show that the evidence 

implicated by the Geertsen claim would have rendered the

Director’s finding “not adequately supported by the record,” see 

Haik, 2019 UT App 4, ¶ 43 (quotation simplified), especially after 

18. We do not include a complete discussion of the record 

evidence considered by the ALJ. The sample we outline is more 

than sufficient to show adequate support for the Director’s 

finding even if the Executive Director had considered the 

Geertsen claim/evidence during her review. Accordingly, no 

prejudice to Friends flowed from the ALJ’s decision that the 

Geertsen claim was not timely presented for her review.
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 27 2023 UT App 58

having “resolv[ed] all disputes in the evidence”—including any 

inconsistencies between the Loughlin Study and the AGEC and 

Tetra Tech studies—“in a light most favorable to the [agency’s] 

determination,”19 see id. (quotation simplified). Notably, Friends 

19. In its opening brief, Friends attached, as Addendum I, eleven

pages of argument, including a marshaling of evidence, it 

submitted to the ALJ on the issue of hydraulic connection. Friends 

incorporated by reference Addendum I into its opening brief and 

asserted, in relevant part, that Addendum I establishes that 

“based on the record evidence, the only defensible determination 

the Director could have made was that the aquifer was 

hydraulically connected to the fractured bedrock beneath it, and 

that because he failed to reach that determination, his decision 

was clearly erroneous.” PPR moved to strike Addendum I, 

arguing that Friends was circumventing the page limit 

established by rule 24 of the Utah Rules of Appellate Procedure. 

We need not resolve this motion because, even considering the 

argument presented in Addendum I, Friends still has not carried 

its burden of persuasion for two reasons.

 First, as the ALJ noted, Friends’ argument presented in 

Addendum I “failed to marshal and acknowledge all of the 

evidence in the record that supports the Director’s 

determination.” Second, “To succeed on appeal, [a petitioner] 

must take issue with and demonstrate error in a final agency 

action[.]” Utah Physicians for a Healthy Env’t v. Executive Dir. of the 

Utah Dep’t of Env’t Quality, 2016 UT 49, ¶ 17, 391 P.3d 148

(emphasis in original). In other words, a petitioner “must actually 

address the alleged errors in the Executive Director’s final order 

in [its] opening brief.” Id. ¶ 18. Addendum I challenged the 

Director’s approval of the permit modification and not the 

Executive Director’s final order. Accordingly, Addendum I is not 

sufficient to carry Friends’ burden of persuasion because it does 

not address the entire evidentiary picture discussed by the ALJ 

and adopted by the Executive Director in her final order.
Friends of Great Salt Lake v. Department of Env’t Quality

20210589-CA 28 2023 UT App 58

does not explain how the Geertsen claim interacts with Loughlin’s 

response to the Division’s question concerning the Geertsen 

Canyon Quartzite, the Browns Hole Formation, and the Mutual 

Formation.

¶38 Without focused analysis of this question, we cannot 

conclude that any error on the Executive Director’s part 

substantially prejudiced Friends. See Utah R. App. P. 24(a)(8).

Accordingly, Friends’ argument is necessarily unavailing.

CONCLUSION

¶39 Friends has not demonstrated that either of the alleged 

errors committed by the Executive Director resulted in substantial 

prejudice. Accordingly, we decline to set aside the Executive 

Director’s final order.20

20. PPR requests an award of attorney fees it incurred in resisting 

Friends’ petition for review, pursuant to rule 33 of the Utah Rules 

of Appellate Procedure. The imposition of attorney fees as a 

sanction for a frivolous appeal under rule 33 “is a serious matter 

and only to be used in egregious cases, lest the threat of such 

sanctions should chill litigants’ rights to appeal lower court 

decisions.” Redd v. Hill, 2013 UT 35, ¶ 28, 304 P.3d 861. 

Accordingly, sanctions are only “appropriate for appeals 

obviously without merit, with no reasonable likelihood of success, 

and which result in the delay of a proper judgment.” Id.

(quotation simplified). While unsuccessful, Friends’ petition for 

judicial review was far from frivolous, and we deny PPR’s request 

for attorney fees.