Friends of Great Salt Lake v. UDEQ

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

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.
Friends 3 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-salt-
lake [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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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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 Friends of Great Salt Lake v. Department of Env’t Quality

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.

20210589-CA 11 2023 UT App 58
 Friends of Great Salt Lake v. Department of Env’t Quality

• “[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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 Friends of Great Salt Lake v. Department of Env’t Quality

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

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
ALJ 9 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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 Friends of Great Salt Lake v. Department of Env’t Quality

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

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

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.

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

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…)

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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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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.

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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

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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.

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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

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

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

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

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.

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

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.

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

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.

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

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.

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