AG-2020-000003

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BEFORE THE EXECUTIVE DIRECOR OF THE UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY DIVISION OF AIR QUALITY

In the Matter of:
U.S. Magnesium, LLC UDAQ Notice of Violation and Order to Comply January 8, 2019
Docket No. 2018122701

ORDER ADOPTING RECOMMENDED
DECISION AND DISMISSING ADJUDICATIVE PROCEEDINGS WITHOUT PREJUDICE

April 27, 2020

Lucy Jenkins, Administrative Law Judge
L. Scott Baird, Executive Director

BACKGROUND
On February 7, 2019, U.S. Magnesium, LLC, (“USM”) filed a Request for Agency
Action to contest the Notice of Violation and Order (“NOVO”) issued by the Director of the
Utah Division of Air Quality (“UDAQ”) on January 8, 2019. On September 12, 2019, I
appointed an Administrative Law Judge (“ALJ”) to conduct an administrative adjudicative
proceeding in the matter pursuant to Utah Code § 19-1-301 and Utah Admin. Code r. 305-7-301
et seq.
Pursuant to Utah Code § 19-1-301, on December 12, 2019, the ALJ submitted a
Recommended Order in Response to Director’s Motion for Voluntary Dismissal Without
Prejudice (“Recommended Order”) in the above-captioned adjudicatory proceeding.
When the ALJ submits a proposed dispositive action to the Executive Director, the
Executive Director may: (1) approve, approve with modifications, or disapprove a proposed
dispositive action; or (2) return the proposed dispositive action to the ALJ for further action as
directed. Utah Code § 19-1-301(7)(b). I have reviewed the Recommended Order. I have also
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reviewed the comments on the Recommended Order filed on December 27, 2019, by USM, and
the response to comments filed on January 6, 2020, by UDAQ.
CONSIDERATION OF USM’s COMMENTS
USM’s Comment No. 1: USM argues that Utah Admin. Code r. 305-7-302 only allows a
notice of violation and order to be “rescinded, vacated, or otherwise terminated.” USM
Comments, p. 3. USM argues that dismissing UDAQ’s NOVO without prejudice does not
terminate it, but rather moves it to another jurisdiction. Id. I disagree. A dismissal of UDAQ’s
NOVO without prejudice “otherwise terminate[s]” the order, as contemplated by the rule. If
UDAQ chooses to pursue an action in district court, that litigation is a separate action, but it does
not revive the NOVO. See Utah Code § 19-2-110 and § 19-2-115 through 116 (which allows
UDAQ to pursue compliance by either issuing a NOVO or filing a complaint in district court,
which are two separate actions under the statute). Further, USM argues that the afore-mentioned
rule cannot “take away” its “statutory right to invoke the agency’s jurisdiction.” Id. I agree that
a rule cannot take away a statutory right. However, in this case, dismissal of the NOVO does not
cause USM to lose its statutory right to contest an order and invoke the agency’s jurisdiction.
Instead, that right is moot once the NOVO is dismissed. USM still has the right to contest future
agency orders, or to defend itself against UDAQ’s allegations in district court.
USM’s Comment No. 2: USM argues that Rule 41(a)(2) of the Utah Rules of Civil
Procedure can only be used by USM as the party who filed the Request for Agency Action, and
not by UDAQ, who issued the initial NOVO. USM’s Comments, p. 3. This argument was fully
considered by the ALJ in her Recommended Order on pages 3-4, and I agree with her assertion
that UDAQ’s NOVO is analogous to a complaint, and that USM’s Request for Agency Action is
analogous to an answer, and therefore, UDAQ is entitled to use Rule 41(a)(2) to request
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dismissal of its NOVO. USM also argues that my directive in appointing an ALJ to conduct this
adjudicative proceeding negates the possibility of dismissing the UDAQ’s NOVO. I am not
persuaded by this argument, as the ALJ has met my directive by entertaining a motion, response,
and reply, conducting a hearing, and submitting a Recommended Order. USM’s argument
appears to suggest that no administrative adjudicative proceeding may ever be dismissed or
otherwise brought to a conclusion short of a full trial, which is clearly not contemplated by the
rules. Utah Admin. Code r. 305-7-312(6) encourages parties “to file dispositive motions, such as
a Motion for Judgment on the Pleadings, a Motion to Dismiss, or a Motion for Summary
Judgment.” Dismissal of an adjudicatory proceeding is contemplated in the rules and does not
indicate that a matter was not fully litigated in the administrative setting.
USM’s Comment No. 3: USM argues that it has been prejudiced by having to respond to
the initial NOVO by filing a Request for Agency Action and responding to UDAQ’s Director’s
15-day compliance letter requirement. I find that the ALJ carefully considered the four-factor
test used to determine prejudice under a Rule 41(a)(2) dismissal, and found that USM will not
suffer prejudice by the dismissal of UDAQ’s NOVO without prejudice. I agree with her
conclusions, noting again that this proceeding was in its beginning stages prior to discovery, and
I find that USM will not suffer prejudice as contemplated by Rule 41(a)(2) and interpreting case
law due to the dismissal of UDAQ’s NOVO.
ORDER
Based on my review of the adjudicatory record and Utah Code § 19-1-301, I hereby adopt
the Recommended Order in full and ORDER:
1.The NOVO issued to USM by the Director of UDAQ on January 8, 2019, is
hereby DISMISSED without prejudice; and,
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2.The Request for Agency Action filed by USM on February 7, 2019, is hereby
DISMISSED as moot, thereby terminating this administrative adjudicative proceeding.
NOTICE OF RIGHT TO PETITION FOR JUDICIAL REVIEW
Judicial review of this final order may be sought in the Utah Court of Appeals in
accordance with Sections 63G-4-401, 63G-4-403, and 63G-4-405 of the Utah Code by filing a
proper petition within thirty (30) days after the date of this order.
DATED this 27th day of April 2020.
____________________________________
L. Scott Baird, Executive Director
Utah Department of Environmental Quality
L. Scott Baird (Apr 27, 2020)
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I hereby certify that on this 27th day of April, 2020, I served by e-mail a true and correct
copy of the ORDER ADOPTING RECOMMENDED DECISION AND DISMISSING ADJUDICATIVE PROCEEDINGS WITHOUT PREJUDICE on the following:
Administrative Proceedings Records Officer
[e-mail]
Lucy B. Jenkins, Administrative Law Judge
Jones, Waldo, Holbrook & McDonough, P.C.
170 South Main Street, Suite 1500
Salt Lake City, Utah 84101
[e-mail]
Christian C. Stephens
Marina V. Thomas
Utah Attorney General’s Office
195 North 1950 West
Salt Lake City, Utah 84116
[e-mail]
[e-mail]
Bryce Bird, Director
Division of Air Quality
195 North 1950 West
Salt Lake City, Utah 84116
[e-mail]
M. Lindsay Ford
Michael A. Zody
Jacob A. Santini
Parsons, Behle & Latimer
201 South Main Street, Suite 1800
Salt Lake City, Utah 84111
[e-mail]
[e-mail]
[e-mail]
____________________________________
CERTIFICATE OF SERVICE
/s/ Shane R. Bekkemellom