o," ",QMf,"bun *"n and Radiation Control MAR & PINEGAR, P.C. r11 South Main Street, Suite z4oo Salt Lake City, Utah 84rrr DURHAM JoNEs 8or.4r5.3ooo - 5 2018 Bradley R. Cahoon Attorney at Law bcahoon(Jd iolaw.com Direct: (8o:.) zg7-1,270 8oe.415.35oo Fax www.djplaw.com ATTORNEYS AT tAW March 5,2078 Hand Delivered Mt. Scott Anderson, Director Division of Waste Management and Radiation Control 195 North 1950 Wesg 2"d Floor Salt Lake City, Utah 841,1,6 Re: Promontory Point Class V l-andfll Perruit Application (witbdrawn) Dear Director Anderson, I write on behalf of my client, Promontory Point Resources ,LLC ("Ptomo4@ry") in reference to Promontory's application for a Class V landfill permit ("Ap@ion"), which was withdrawfl on Febtuary 1,6,201,8, as acknowledged in the Division's letter of February 26,2078. Requests The purpose of this lettet is to noti$, you, as the Division Director, that the Division and its staff have taken various actions that ate not in accordance with the Division's regulations and the Utah Govemment Records Access and Management Acg Utah Code Ann. $$ 63G2-707 et seq. ("GR\NIA'). These actions have harmed Promontory and the Promontoly Point Landfill. Ptomontory hereby requests that (a) all information telated to the Application that is published on the Division's website, Facebook page, Twitter, or other social media be prompdy temoved; (b) ull communications related to the Application by the Division with the public priot to a notice of public hearing, pursuant to Utah Admin. Code S R315-124-10, be discontinued immediately; and (c) require the public to comply with GRAMA in obtaining tecotds from the Division pertaining to Promontory. SALT LAKE CITY I LEHI I OGDEN I ST. GEORGE I LAS VEGAS sLC_3635819.1 Mt. Scott Anderson, Director March 5,2078 Page 2 Further, Ptomontory respectfully requests that the Division (i) not ptoceed to finalize its report and comments on the Needs Assessment Report Addendum, Promontory Point Landfill, dated Decembet 20,2077 ("Needs Addeodrrm") and (ii) provide Promontory access to the comments of the Division's contfactor, SC&A, on Promontory's Needs Addendum. Backgtound By way of background, on behalf of the Division, SC&A's report requested various clarifications and additional information beyond what was included in Promontory's otiginal Application. SC&A recoffunended that Promontory contract with HDR Engineedng, Inc., ("HDR"). HDR had completed a similar needs assessment on the most recendy approved Class V landfill permit applicationl and, in SC&A's opinion, had performed an effective assessment demonstrating need for that Class V landfill in accordance with Utah Code Ann. 19-6-108(10). The need which led to the Division's approval of that Class V landfill included the following: 'This tend to large, remote landfrlls operated under multi-jurisdictional partnerships or by private entelprises is expected to continue along the Wasatch Front as the population continues to expand." and "Permitting an additional commetcial landfill would provide futute disposal capacity for nonhetn Utah communities and would provide more competitiofl amoflg commercial facilities to keep disposal rates reasonable."2 Promontory followed SC&A's reconunendation and contracted with HDR in October2077 to complete the Needs Addendum to provide all remaining information that SC&A had requested. The Division recendy claimed that Promontoq/ tequested that the Division fiiahze its tepott and comments on Promontory's Needs Addendum. This is incorect. On February 20d, Promontory asked the Division fot the comments of the Division's contractor, SC&A, on Ptomontory's Needs Addendum. The sole purpose for this request was to provide those cornments to HDR because it wrote the Needs Addendum. Instead, on February 26th,the Division informed Promontory that the Division would be frnalizingits report and comments on the Needs Addendum on grounds that members of the public want to see them. Promontory vigotously objects to this and respectfully requests thttps://deq.utah.gov/businesses/I/IntermountainRegior.al/docs/2071/02Feb/Irtermountain-Regional-Landfill-Clas s_1 _Permit_Application.pdf 2Id. section 4.2.1 Need for Additional Capairty. sLC_3635819.1 Mt. Scott Anderson, Director Match 5,2078 Page 3 that this not be done by your Division. Reasons There are five reasons, among othets, why the Division should not complete its teport and comments on Ptomontory's Needs Addendum. First, Promontory withdtew its Application on February 16,2078 as acknowledged by your lettet of February 26,2078 to Ptomontory. No further action should be taken by the Division in tesponding to the Needs Addendum or anything else related to the withdrawn Application. Second, the Division has required Promontoq/ to pay for the time spent by both the Division and the Division's contractor SC&A on Promontory's Application. Promontory refuses to pay for any time spent by the Division or SC&A after February 76,2078, the date the Application was withdrawn. Moreover, the Division should not use taxp^yer dollars to finafize its report and comments on the Needs Addendum. Third, and most disturbing to Promontory, we believe that the Division's tactics in connection with Ptomontoqr's Application are uflprecedented. The Division has manifested by its statements and actions throughout the Application process that it has preiudged Ptomontory's Application for denial. From the outset of the filing of the Application, you as Division Director have made statements in meetings with Promontoty that,in your opinion, the State of Utah aheady has too much Class V landfill capacity and did not need another Class V landfill. Despite solid evidence to the contary in Ptomontory's Needs Addendum based on regional data, you have maintained your predetermined position. Detogatory statements about Ptomontory's project have been made by Division staff in open meetings and on social media and have been quoted in the press. Roughly three weeks befote Promontory withdrew its Application, an ardent opponent of the project, activist Lynn de Fteitas, with Ftiends of Great Salt Lake, stated in public that the Division told her that the Division would have a decision on the Application that week. This was before the Division had received the comments of its contr^ctor, SC&A, on the Needs Addendum, frrrther demonstrating a ptedetermined outcome. Communications with the public of this nattue are contralT to law and yout administrative rules that only provide yo, *ith authority to tespond in writing to wtitten comments made during the public comment pedod. Utah Admin. Code P.31, 5-1.24. In a Februtry 22,2018 online atticle, the Ogden Standard Examinr.r quoted the Division as stating, "[Ptomontory] likely pulled their application due to public pressure and because of sLC_3635819.1 Mr. Scott Anderson, Director March 5,2018 Page 4 confusion over groundwatet monitoring wells that have yet to be installed."3 And, "[m]y thoughts ate, with the amount of money fPromontory] put into it, they need the Class V to survive...I'd be very surprised that it's just &opped, especially the way the letter was wdtten. [Promontory] had a clause that mentioned 'until further notice,'which tells me they'te looking down the road for something." The Division fruthet cteated a "Frequendy Asked Questions" prg. regarding the Promontory Landfill and the Application on the Division's websitea. On this publicly accessible webpage, the Division makes inflammatoq/ statements about the volumes and types of waste that would be accepted: "Because Class V landfrlls can accept tegional waste, there is grc^ter likelihood that ^ residual (CCR or coal highet volumes of special wastes such as ash, coal combustion ash), bulk wastes, limited-PCB-containing wastes, petroleum-contaminated soils, and waste asphalt could be disposed in the landfill, as these wastes are typically produced in smaller quantities or not produced at all in many local judsdictions." Yet on the same webpage, the Divisioil states that "Class V landfi.lls can accept the same wastes approved under Class I permits." Numetous press reports subsequendy emerged that promoted the incorect notion that Promontory landfill would be accepting "hazatdotts waste."S These went unchallenged by the Division. On February 9,2078, the Division went so far as to establish a Facebook page exclusively dedicated to Promontory's Application, including a video produced by the Division.6 The Facebook page has received hundreds of page views, and visitors have posted the misleading press articles. In facg the Division posted a"tharrk-you" response to at least one such article. In another posting, referencing the Needs Addendum, the Division stated that the "the Class V permit ... is far from being complete." Other postings on the Facebook page such as false claims of "dumping toxic wastes in Utah for money," have received no response ot corection by the Division. Fourth, there is more. The Division impropedy posted on its website public records 3 http://www.standard.netlEnvironment/2018/02l22lPromontory-Pointlandfill-has-withdrawn-class-v-permit-to- take-out-of-state-waste.html a s https://deg.utah.gov/businesses/P/promontory-point-landfill/frequend)'-asked-questions.htm https://www.sltrib.com/opinion/commentary/2018/01/26lcommentar)'-another-landfill-for-hazardous-waste-from- other-states-is-not-the-way-to-generate-economic-development-in-utah httos: / /www. facebook. com /utahdeo /wid eo* /'l 55293 1 O7 47 4\9 6 4 / 6 sLC_3635819.1 / Mr. Scott Anderson, Director March 5,201,8 Page 5 pertaining to Promontory's project.T Before formally confirming in writing that Promontory's Application is complete (which was never done by the way), the Division made public recotds easily accessible to environmental activists opposing Promontory's Application. Utah law designates the Division as the "lawfirl custodian" or gatekeeper of public records. Craham a. Daais Cry. Solid lf,/a$e Mgmt dt EnergtRecouerl Special Sent. Dist.,1999 UT App 136, n25,979P.2d363,372. As such, the Division must comply with and follow the GRAMA. 'lMhen it explained why GRAMA was necessary, the Legislature expressed the view that both the right of access to information concerning the conduct of the public's business and the right of indiuidual piaary concemingpersonal inforzation acquired b1 gouerumental entities were entitled to con$itutional prutexior." Deseret News Pub. Co. a. Salt l-ake Cfl.,2008 UT 26,1173,782 P.3d 37 2, 37 6-77 (emphasis added). The GRAMA procedures that the public and the Division must abide by are as follows: 1,. GRAMA allows everry petson "to inspect a public tecord free of charge, and the dght to take a copy of a public record during norrual working hours." Maue a. Dauis Cry.,2072 UT App 48, 11 4, 27 3 P .3d 9 49, 9 50 (emphasis added). 2. To access a public record, a person must "furnish the governmental entity with a written [GRAMA] request containing ... a descdption of the record requested that identifies the tecotd with teasonable specificity." Id. at !l 6 (quotations and citation 3. omitted). In response to the GRAMA request, "a govemmental entity shall provide a person with a certified copy of a tecotd if: (a) the person requesting the record has a right to inspect it; (b) the person identifies the record with reasonable specificity; and (c) the person pays the lawfi.rl fees." Utah Code Ann. $ 63G-2-207. By making Ptomontory's information directly available to the public, the Division has circumvented prosctibed GRAMA procedwes. Rather than having to file a written GRAMA request with the Division, any membet of the public can simply click on the Division website to access the records relating to Promontory's Application. Fifth, and finally, for a,ll of the foregoing reasons, Promontory respectfully requests that the Division not take any further action to complete its repot and comments on the Promontory Needs Addendum. Promontory has reason to believe that the Division is frnalizngits Needs Addendum report so that it can post the sarne on its website and publicize a negative report to which Promontory cannot rebut. Futther, it seems clear that the Division is finalizing its Needs Addendum reporr to justi$, a predetermined position that 7 https:/ /deo.utah.gov,/businesses/P/promontor,-pointlandfill/index.htm sLC_3635819.1 Mt. Scott Anderson, Director March 5,2078 Page 6 Utah does not need another Class V landfill. This is extremely prejudicial and unfair to Ptomontory who would not be glverr an opportunity to respond because its Application has been withdrawn. The Big Picture Ptomontory is deeply committed to environmental stewardship and has constructed a state of the art disposal facility that will be protective of Utah's natual resources while promoting economic growth and iob creation, both locally in Box Elder County and in Utah mote generally. It will also result in more competitive disposal pricing, which is good for businesses. There has been a ftemendous amount of misinformation andf or misleading information regatding the Promontoq/ facrhty, and we believe that the Division, rather than corecting this misinformation, has helped facilitate its distribution. As the Division is most surely aware, Ptomontory is not seeking nor will it be disposing of hazardous ot toxic waste at the facility. Indeed, the types of industrial waste matedals that at issue in the (now withdrawn) Class V permit application are the same types of waste ^te materials which Promontory has akeady been permitted to accept and receive from within the State of Utah under its existing Class I landfill permit. Conclusion Promontory respectfully requests assurances immediately that the Division will (, (ii) (rl) (t") (") not proceed to frnalize its report and comments on the Needs Addendum; ptovide Promontory access to SC&A's comments on the Needs Addendum; stop posting and temove all information related to the Application and Promontory that is published on the Division's website, Facebook page, Twitter, or other social media; cease and desist all communications telated to the Application by the Division with the public prior to a notice of public hearing, pursuant to Utah Admin. Code R315-124-10; and tequfue the public to comply with GRAMA in obtaining tecords from the Division pertaining to Promontory. Promontory is genuinely interested in amicably resolving this matter with the Division. Should the Division not provide adequate assrrances, Ptomontory will seek immediate relief sLC_3635819.1 Mt. Scott Andetson, Director March 5,2018 PageT in district court.8 Please be advised that as a direct and proximate result of the Division's actions, Ptomontory has lost millions of dollats and at least another ye r in ptoject delays. Very truly yorus, DunneuJoNrs & PTNEGAR, P.C. Btadley R. Cahoon cc: Promontory Point Resources,LLC Alan Matheson, UDEQ Executive Director amatheson@utah.gov Craurs. Anderson. Esq. craisanderson@asutah. sov Ravmond Wixom- Esq..-rwixo m(d.aEutah.sov 8 A district court may "issue an injunction against a govefirmental entity that violates or proposes to violate GRAMA." r Maue,2011 UT App 73, 113, 251 P.3d 843, 845. Mnru1t Cig sLC_3635819.1