DSHW-2025-001260

Deq submit <[e-mail]>
Fwd: Promontory--Director's Dispositive Motions
1 message
Jalynn Knudsen <[e-mail]>Mon, Mar 3, 2025 at 12:11 PM
To: Deq submit <[e-mail]>
DSHW
---------- Forwarded message ---------
From: Raymond Wixom <[e-mail]>
Date: Mon, Mar 3, 2025 at 12:08 PM
Subject: Promontory--Director's Dispositive Motions
To: Jalynn Knudsen <[e-mail]>
Cc: [e-mail] <[e-mail]>, Brenden Catt <[e-mail]>, Bret Randall
<[e-mail]>
Jalynn,

Attached are the two dispositive motions the Director filed in the Promontory Point Resources
adjudication.

Would you please send Brenden and me a copy of the GRAMA request to which you are
responding? There is no question about the two motions; they are public documents, releasable
under GRAMA.

Thanks,
Raymond
--
Jalynn Knudsen
Assistant Director |
Division of Waste Management and Radiation Control
M: [phone]
P: [phone]
wasteandradiation.utah.gov
Emails to and from this email address may be considered public records and thus subject to Utah GRAMA requirements.
Statements made in this email do not constitute the official position of the Director of the Division of Waste Management and Radiation Control. If
you desire a statement of the Division Director’s position, please submit a written request to the Director, including copies of documents relevant to
your request.
3/3/25, 3:54 PM State of Utah Mail - Fwd: Promontory--Director's Dispositive Motions
https://mail.google.com/mail/b/AEoRXRRnsinZL74qV8VCOXwom1SLjVt_ci51uiGmhHD7fwhTRNiS/u/0/?ik=adf9d5e615&view=pt&search=all&permthi…1/3
---------- Forwarded message ----------
From: Andrea Gaytan <[e-mail]>
To: "DEQ APRO ([e-mail])" <[e-mail]>, "Richard McKelvie ([e-mail])"
<[e-mail]>, "Brad Cahoon ([e-mail])" <[e-mail]>, "Tyler
Cahoon ([e-mail])" <[e-mail]>, "Cole Crowther ([e-mail])"
<[e-mail]>, Raymond Wixom <[e-mail]>, Brenden Catt <[e-mail]>,
"[e-mail]" <[e-mail]>
Cc:
Bcc:
Date: Fri, 14 Feb 2025 23:31:00 +0000
Subject: Promontory Point Class V Permit - Director's Dispositive Motion to Dismiss PPR's Dormant Commerce Clause
Claim
Good evening,

Please see aached the Director’s Disposive Moon to Dismiss Promontory Point Resources, LLC’s Dormant Commerce Clause
Claim in relaon to the above caponed maer.

Regards,
Andrea Gaytan
Paralegal
Environment/Health & Human Services Division
Utah Aorney General’s Office
P.O. Box 140873
195 North 1950 West
Salt Lake City, Utah 84114-0873
Direct: [phone]
Office: [phone]
[e-mail]

This electronic transmission may contain confidenal and privileged informaon. This message is intended only for the use of the
individual or enty to which it is addressed and may contain informaon that is exempt from disclosure under applicable federal or
state law. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message
to the intended recipient, you are hereby nofied that any disseminaon, distribuon, or copying of this communicaon is strictly
prohibited. If you have received this communicaon in error, please nofy us immediately by telephone and destroy the original
message received by you.

---------- Forwarded message ----------
From: Andrea Gaytan <[e-mail]>
To: "DEQ APRO ([e-mail])" <[e-mail]>, "Richard McKelvie ([e-mail])"
<[e-mail]>, "Brad Cahoon ([e-mail])" <[e-mail]>, "Tyler
Cahoon ([e-mail])" <[e-mail]>, "Cole Crowther ([e-mail])"
<[e-mail]>, Raymond Wixom <[e-mail]>, Brenden Catt <[e-mail]>,
"[e-mail]" <[e-mail]>
Cc:
Bcc:
3/3/25, 3:54 PM State of Utah Mail - Fwd: Promontory--Director's Dispositive Motions
https://mail.google.com/mail/b/AEoRXRRnsinZL74qV8VCOXwom1SLjVt_ci51uiGmhHD7fwhTRNiS/u/0/?ik=adf9d5e615&view=pt&search=all&permthi…2/3
Date: Fri, 14 Feb 2025 23:29:21 +0000
Subject: Promontory Point Class V Permit - Director's Dispositive Motion as to the Meaning of Utah Code § 19-6-108(10)
(b)
Good evening,

Please find aached the Director’s Disposive Moon as to the Meaning of Utah Code § 19-6-108(10)(b) in relaon to the above
caponed maer.

Regards,
Andrea Gaytan
Paralegal
Environment/Health & Human Services Division
Utah Aorney General’s Office
P.O. Box 140873
195 North 1950 West
Salt Lake City, Utah 84114-0873
Direct: [phone]
Office: [phone]
[e-mail]

This electronic transmission may contain confidenal and privileged informaon. This message is intended only for the use of the
individual or enty to which it is addressed and may contain informaon that is exempt from disclosure under applicable federal or
state law. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message
to the intended recipient, you are hereby nofied that any disseminaon, distribuon, or copying of this communicaon is strictly
prohibited. If you have received this communicaon in error, please nofy us immediately by telephone and destroy the original
message received by you.

4 attachments
Director's Dispositive Motion to Dismiss PPR's Dormant Commerce Clause.pdf
214K
Promontory Point Class V Permit - Director's Dispositive Motion to Dismiss PPR's Dormant Commerce
Clause Claim.eml
304K
Director's Dispositive Motion as to the Meaning of Utah Code § 19-6-108(10)(b).pdf
272K
Promontory Point Class V Permit - Director's Dispositive Motion as to the Meaning of Utah Code § 19-6-
108(10)(b).eml
384K
3/3/25, 3:54 PM State of Utah Mail - Fwd: Promontory--Director's Dispositive Motions
https://mail.google.com/mail/b/AEoRXRRnsinZL74qV8VCOXwom1SLjVt_ci51uiGmhHD7fwhTRNiS/u/0/?ik=adf9d5e615&view=pt&search=all&permthi…3/3
Subject: Promontory Point Class V Permit - Director's Dispositive
Motion to Dismiss PPR's Dormant Commerce Clause Claim
<[e-mail]>Fri, Feb 14, 431 PM
to DEQ APRO ([e-mail]), Richard McKelvie ([e-mail]), Brad Cahoon (brad.c
Andrea Gaytan
Good evening,

Please see aached the Director’s Disposive Moon to Dismiss Promontory Point Resources, LLC’s Dormant
Commerce Clause Claim in relaon to the above caponed maer.

Regards,
Andrea Gaytan
Paralegal
Environment/Health & Human Services Division
Utah Aorney General’s Office
P.O. Box 140873
195 North 1950 West
Salt Lake City, Utah 84114-0873
Direct: [phone]
Office: [phone]
[e-mail]

This electronic transmission may contain confidenal and privileged informaon. This message is intended only for the
use of the individual or enty to which it is addressed and may contain informaon that is exempt from disclosure
under applicable federal or state law. If the reader of this message is not the intended recipient or the employee or
agent responsible for delivering the message to the intended recipient, you are hereby nofied that any disseminaon,
distribuon, or copying of this communicaon is strictly prohibited. If you have received this communicaon in error,
please nofy us immediately by telephone and destroy the original message received by you.

One aachment • Scanned by Gmail
Director's Disposi…
3/3/25, 3:56 PM Promontory Point Class V Permit - Director's Dispositive Motion to Dismiss PPR's Dormant Commerce Clause Claim - dwmrcsubmit…
https://mail.google.com/mail/u/0/d/AEoRXRRnsinZL74qV8VCOXwom1SLjVt_ci51uiGmhHD7fwhTRNiS/popout?ver=1wptpn41dpcjd&msg=%23msg-f%…1/1
1
Raymond D. Wixom (#3532) Assistant Attorney General
DEREK E. BROWN (#10476)
Utah Attorney General P.O. Box 140873 Salt Lake City, Utah 84114-0873 385-414-0664
[e-mail]
Attorney for Director, Utah Division of Waste Management and Radiation Control BEFORE THE EXECUTIVE DIRECTOR OF THE UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY In the Matter of: DIRECTOR’S DISPOSITIVE MOTION TO DISMISS PROMONTORY POINT RESOURCES, LLC’S DORMANT
COMMERCE CLAUSE CLAIM
Richard D. McKelvie Administrative Law Judge

Promontory Point Resources, LLC Petition for Review of Director’s Order Denying Class V Permit
Docket No. SW416
February 14, 2025

Pursuant to Utah Code § 19-1-301.5(1)(b) and (8)(a)(ii), Respondent Director of the Utah
Division of Waste Management and Radiation Control (the Director) hereby moves the
Administrative Law Judge (ALJ) for an order dismissing Argument 1 of Petitioner Promontory
Point Resources, LLC’s (PPR) Petition for Review. PPR claims the Director has violated the
dormant Commerce Clause. The Executive Director of the Department of Environmental
Quality (the Executive Director) lacks subject matter jurisdiction to decide that constitutional
claim.

2
INTRODUCTION AND PROCEDURE UNDER UTAH CODE § 19-1-301.5
1. This is a special adjudicative proceeding and internal agency review under Utah Code §
19-1-301.5. The subject of this proceeding involves the Director’s denial of PPR’s commercial
Class V permit application for the Promontory Point Landfill (PPL) based on the Director’s
determination that PPR failed to demonstrate a “need in the state for the additional capacity for
the management of nonhazardous solid . . . waste” under Utah Code § 19-6-108(10)(b)(i).
Admin. Rec. at 5466-72.
2. Utah Code § 19-1-301.5 governs special adjudicative proceedings arising from “permit
orders” issued by directors within the Utah Department of Environmental Quality (UDEQ). The
ultimate question presented in a special adjudicative proceeding under Section 301.5 is whether
the Director’s findings supporting the permit order are clearly erroneous based on a petitioner’s
marshaling of the evidence. See Utah Code § 19-1-301.5(14)(b). In substance, special
adjudicative proceedings are an internal, appellate-like review of the Director’s factual,
technical, and scientific determinations and not a trial de novo. See id.
3. Utah Code § 19-1-301.5 procedures apply in lieu of the Utah Administrative Procedures
Act, Utah Code § 63G-4-101 et seq. Friends of the Great Salt Lake v. Dep't of Env't Quality,
Div. of Waste Mgmt. & Radiation Control, 2023 UT App 58, ¶ 24, 531 P.3d 767 (discussing the
appropriate standards of review for special adjudicative proceedings arising from UDEQ permit
orders). Section 301.5 does not fully define the procedures that apply to special adjudicative
proceedings, and the proceedings include elements of appellate-like and trial-like procedures.
Friends of the Great Salt Lake, 2023 UT App 58 at ¶ 24 n.12. On the one hand, Section 301.5
places the Director in the position of the finder of fact and the ALJ in an appellate posture. On
the other hand, “dispositive motions” under Section 301.5 represent trial-like procedures, by
3
analogy to the Utah Rules of Civil Procedure (URCP).1 Yet, the URCP are not a strong
procedural fit: URCP 12 tests a plaintiff’s complaint, while URCP 56 tests the sufficiency of
evidence for a trial. By contrast, Section 301.5 presents a clear error review based on a
marshaling requirement in petitioner’s brief on the merits. Utah Code § 19-1-301.5(14)(b). But
like pretrial dispositive motions, Section 301.5 anticipates that the ALJ will rule on dispositive
motions prior to briefing on the merits. See Utah Code § 19-1-301.5(8)(a)(iii), (12).
4. Although URCP 12 and 56 do not provide procedural standards and tests that are fully
appropriate, URCP 12 does present a close analogy for this Dispositive Motion because this
Motion tests the sufficiency of PPR’s dormant Commerce Clause theory. Because this Motion
presents a pure question of law, and the function of marshaling evidence does not arise until
briefing on the merits, it is not yet necessary to delve into the facts presented. That being said,
this Dispositive Motion does include supporting references to the Administrative Record, as may
be relevant to this Motion.
RELIEF REQUESTED
5. This Dipositive Motion is “equivalent to” a motion to dismiss. See Utah Code § 19-1-
301.5(1)(b)(i). It presents a pure question of law—whether the Executive Director has subject
matter jurisdiction to declare Utah Code § 19-6-108(10)(b) unconstitutional on its face or as
applied. This Motion asserts that PPR’s dormant Commerce Clause claim fails to state a claim
upon which relief may be granted under Utah Code § 19-1-301.5.
6. In Argument 1 of its Petition for Review, PPR claims “[t]he Director’s interpretation and
application of Utah Code § 19-6-108(10)(b)(i) to PPR violates the Dormant Commerce Clause of
the United States Constitution.” Petition for Review at 4. The Executive Director can take

1 See Utah Code § 19-1-301.5(1)(b) (providing that dispositive motions in special adjudicative proceedings are to be “equivalent to” Utah Rules of Civil Procedure 12 and 56).
4
dispositive action under Utah Code § 19-1-301.5(14)(a) only if she has subject matter
jurisdiction over the claim before her. If she does not have subject matter jurisdiction, she only
has power to dismiss the claim. Blaine Hudson Printing v. Utah State Tax Comm’n, 870 P.2d
291, 292 (Utah Ct. App. 1994). The Director contends that the Executive Director does not have
subject matter jurisdiction to decide constitutional claims, including PPR’s dormant Commerce
Clause claim. Because there is no subject matter jurisdiction over PPR’s dormant Commerce
Clause claim in the first instance, excluding it from briefing on the merits would result in no
prejudice to PPR.
7. Therefore, the Director requests the ALJ dismiss PPR’s dormant Commerce Clause claim
on the grounds that it fails to state a claim upon which relief may be granted in this special
adjudicative proceeding.
LEGAL ARGUMENT
I. Article VIII Courts Have the Authority to Review Constitutional Questions.
8. The judicial power of the State of Utah is vested in the Supreme Court, the District
Courts, and other courts created by statute. Utah Const. Art. VIII § 1. These are courts of
record. Id. The Supreme Court has appellate jurisdiction over “a final judgement or decree of
any court of record holding a statute of the United States or this state unconstitutional on its face
under the Constitution of the United States or the Utah Constitution.” Utah Code § 78A-3-
102(3)(g).
9. The Court of Appeals was created by statute. Utah Code § 78A-4-101. It is a court of
record. Salt Lake City v. Ohms, 881 P.2d 844, 849 (Utah 1994); Utah R. Jud. Admin. 1-
101(1)(I). The Court of Appeals has appellate jurisdiction over “a final order or decree resulting
from . . . a formal adjudicative proceeding of a state agency.” Utah Code § 78A-4-
5
103(3)(a)(i)(A). The Court of Appeals “has the power to rule on the constitutionality of
statutes.” Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 681 (Utah 1995).
10. The Court of Appeals has jurisdiction to hear a petition for judicial review of the
Executive Director’s dispositive action resolving a Petition for Review of the Director’s decision
to deny PPR’s requested Class V permit. Utah Code § 19-1-301.5(16)(a). The Court is to grant
relief for only a prescribed set of harms that have substantially prejudiced PPR. See Utah Code §
63G-4-403(4)(a). One of the harms for which the Court may grant relief is that “the agency
action, or the statute or rule on which the agency action is based, is unconstitutional on its face or
as applied.” Id.
11. Accordingly, only the Court of Appeals or the Supreme Court, if appellate review of an
agency action occurs, may determine that the statute upon which an agency action is based is
unconstitutional, either on its face or as applied.
A. The Director, the ALJ, and the Executive Director Lack Jurisdiction to Declare a State Statute Unconstitutional.
12. The Director is a member of the executive branch of the State of Utah. His position was
created by the Legislature. Utah Code § 19-1-105(1)(d). He was appointed by the Executive
Director, who, in turn, was appointed by the Governor, with the advice and consent of the
Senate. Utah Code §§ 19-1-104(2) and -105(2). The ALJ was appointed by the Executive
Director under Utah Code § 19-1-301.5(5)(a).
13. Neither the Director, nor the Executive Director, nor the ALJ are members of the
judiciary, possess judicial power, or compose a court of record under Article VIII, Section 1, of
the Utah Constitution. Likewise, these executive officers are without authority to perform “core
judicial functions,” including determining the constitutionality of a state statute. See Ohms, 881
P.2d at 849.
6
14. Therefore, neither the Director, nor the Executive Director, nor the ALJ have the power
to declare the statute upon which the Director’s action was based, here, Subsection (10)(b),
unconstitutional. Erda Cmty. Ass’n Inc. v. Grantsville City, 2024 UT App 126, ¶ 58, 558 P.3d 91
(citing ABCO Enters. v. Utah State Tax Comm'n, 2009 UT 36, ¶ 12, 211 P.3d 382).2
B. Administrative Agencies Attempting to Assume Judicial Powers Raises Significant Separation of Powers Questions.
15. Under Article V, Section 1, of the Utah Constitution, “[t]he powers of the government of
the State of Utah shall be divided into three distinct departments, the Legislative, the Executive,
and the Judicial; and no person charged with the exercise of powers properly belonging to one of
these departments, shall exercise any functions appertaining to either of the others, except in the
cases herein expressly directed or permitted.” Indeed, “[a]dministrative [a]gencies . . . do not
possess judicial power and, accordingly, do not have the power to declare legislation
unconstitutional.” Erda Cmty. Ass’n Inc., 2024 UT App 126 at ¶ 58.
16. Agencies are arms of the executive branch, and therefore an agency’s attempting to
assume judicial powers raises significant separation of powers concerns. As explained above,
the Director occupies an office created by the Legislature, as does the Executive Director. Utah
Code §§ 19-1-104(2) and -105(2). The ALJ was appointed by the Executive Director. Utah
Code § 19-1-301.5(5)(a). Consequently, the ALJ is an adjunct of the Executive Director,
charged with recommending to her full or partial resolution of this special adjudicative
proceeding. Id. § 19-1-301.5(12)(b).

2 See Muddy Boys, Inc. v. Dep't of Com., Div. of Occupational & Pro. Licensing, 2019 UT App 33, ¶¶ 17-29, 440 P.3d 741; see also Johnson v. Utah State Ret. Off., 621 P.2d 1234, 1237 (Utah 1980).
7
17. Accordingly, the Director, Executive Director, and ALJ are officers of the executive
branch and should be wary of assuming authority and responsibilities properly belonging to the
judiciary under Article VIII of the Utah Constitution.
II. Utah Appellate Courts Have Consistently Recognized that Agencies Lack
Jurisdiction to Declare a State Statute Unconstitutional.
18. “Administrative agencies do not generally determine the constitutionality of their organic
legislation, . . . the mere introduction of a constitutional issue does not obviate the need for
exhaustion of administrative remedies.” Nebeker v. Utah State Tax Comm’n, 2001 UT 74, ¶ 16,
34 P.3d 180. Nevertheless, constitutional issues should be raised in administrative proceedings
to preserve such issues for appellate review. ABCO Enters., 2009 UT 36 at ¶ 11 (quoting
Nebeker, 2001 UT 74 at ¶ 20).
A. PPR Preserved Its Dormant Commerce Clause Claim.
PPR preserved its dormant Commerce Clause claim by raising that claim in its public
comment and in its Petition for Review. It is appropriate for PPR to raise its dormant Commerce
Clause claim in this administrative proceeding to preserve it for appellate review. The Director
does not object to PPR’s raising and preserving that claim.
19. However, neither the Director, nor the Executive Director, nor the ALJ has authority to
resolve this constitutional issue in this administrative proceeding. When the Executive Director
dismisses that claim for lack of jurisdiction, PPR may petition for the Court of Appeals for
judicial review of her final agency action. As explained above, the Court of Appeals has
jurisdiction to grant relief if it determines that PPR has been substantially prejudiced because the
Executive Director’s action was unconstitutional. Utah Code § 63G-4-403(4)(a); see also Utah
Code § 19-1-301.5(16)(c)(i) (instructing the Court of Appeals to “review all agency
determinations in accordance with Subsection 63G-4-403(4)”).
8
20. Accordingly, PPR preserved its dormant Commerce Clause claim, despite that claim
being unresolvable at this juncture.
B. PPR’s Dormant Commerce Clause Claims Cannot Be Resolved in this Administrative Proceeding.
21. When a constitutional claim is otherwise properly brought before an agency, the agency
has no jurisdiction over the claim, and “[w]ithout subject matter jurisdiction, the … agency lacks
the power to do anything beyond dismissing the proceeding.” Nebeker, 2001 UT 74 at ¶ 24.
Nevertheless, “if . . . an administrative proceeding might leave no remnant of the constitutional
question, the administrative remedy plainly should be pursued.” Id. at ¶ 16 (quoting Johnson,
621 P.2d at 1237).
22. The only way PPR’s dormant Commerce Clause claims could be resolved in this
administrative proceeding would be for the Director to concede that his understanding of the
meaning of Subsections (10)(b) and (10)(b)(i) is incorrect and PPR’s understanding is correct.3
This he cannot do. In the Director’s opinion, the statutory language does not violate the dormant
Commerce Clause. Notwithstanding PPR’s contrary protestations, he “had no power to do
anything other than apply the statutory provisions as written.” Erda Cmty. Ass’n Inc., 2024 UT
App 126 at ¶ 59. And PPR’s constitutional remedy, if such a remedy exists, like the Erda
Community Association Inc.’s remedy, is with the courts.
23. It might be tempting to think the ALJ and the Executive Director could avoid the
constitutional issue and resolve this matter by concluding that the Director’s understanding of the
statute is incorrect and remanding this matter to him to reconsider his permit decision. Such a
temptation would be wrong. The Director has explained the plain meaning of the statute in his
Dispositive Motion as to the Meaning of Utah Code § 19-6-108(10)(b). His correct statutory

3 Alternatively, PPR could resolve the constitutional question by withdrawing its dormant Commerce Clause claims.
9
interpretation cannot be overturned just to avoid the discomfort of PPR’s misplaced
constitutional challenge. See Utah Dept. of Transp. v. Carlson, 2014 UT 24, ¶ 25, 332 P.3d 900.
24. Accordingly, PPR’s dormant Commerce Clause claim cannot be resolved in this
administrative proceeding.
C. The Director Has Previously Taken the Position that Agencies Generally Lack Authority to Declare Their Organic Statutes Unconstitutional.
25. The Director is responsible for responding to substantive public comments received
during the public comment period. Utah Admin. Code R315-124-17.
26. PPR made extensive public comments concerning its dormant Commerce Clause claim.
Admin. Rec. at 5008-12. The Director responded to those comments in his Response to
Comments. Admin. Rec. at 5502-09. In responding to PPR’s public comments on the dormant
Commerce Clause, the Director did not attempt to make a judgment on the constitutionality of
Subsection (10)(b). Specifically, he concluded that he “has no authority or ability to declare a
statute or certain elements of a statute, in this case, Utah Code § 19-6-108(10), unconstitutional.”
Admin. Rec. at 5508. Furthermore, he refused “to substitute his authority for that of the
judiciary by declaring [Subsection (10)(b)] unconstitutional either on its face or as applied.”
Admin. Rec. at 5509.
27. Accordingly, the Director’s position that agencies generally lack authority to declare their
organic statutes unconstitutional has remained consistent.
CONCLUSION
28. Neither the Director, nor the Executive Director, nor the ALJ are members of the
judiciary, possess judicial power, or compose a court of record. Accordingly, these officers of
the execute branch are without the power to declare Subsection (10)(b) unconstitutional.
10
29. Therefore, the Director asks the ALJ to recommend the Executive Director dismiss PPR’s
dormant Commerce Clause claim.

DATED this 14th Day of February 2025.

DEREK E. BROWN ATTORNEY GENERAL

/s/ Raymond D. Wixom Raymond D. Wixom
Assistant Attorney General
Attorney for the Director of the Division of
Waste Management and Radiation Control

11
CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of February 2025, I caused a copy of the foregoing DIRECTOR’S DISPOSITIVE MOTION TO DISMISS PROMONTORY POINT RESOURCES, LLC’S DORMANT COMMERCE CLAUSE CLAIM to be sent by electronic mail to the following:
Administrative Proceedings Records Officer
[e-mail] Richard D. McKelvie Administrative Law Judge
[e-mail]
Bradley R. Cahoon Tyler R. Cahoon Cole P. Crowther
Dentons Durham Jones Pinegar
[e-mail] [e-mail] [e-mail]
Raymond Wixom
Assistant Attorney General for Director [e-mail] Brenden K. Catt
Assistant Attorney General
[e-mail] Douglas J. Hansen Director, Division of Waste Management and Radiation Control
[e-mail]
/s/ Andrea Gaytan Andrea Gaytan

Subject: Promontory Point Class V Permit - Director's Dispositive
Motion as to the Meaning of Utah Code § 19-6-108(10)(b)
<[e-mail]>Fri, Feb 14, 429 PM
to DEQ APRO ([e-mail]), Richard McKelvie ([e-mail]), Brad Cahoon (brad.c
Andrea Gaytan
Good evening,

Please find aached the Director’s Disposive Moon as to the Meaning of Utah Code § 19-6-108(10)(b) in relaon to
the above caponed maer.

Regards,
Andrea Gaytan
Paralegal
Environment/Health & Human Services Division
Utah Aorney General’s Office
P.O. Box 140873
195 North 1950 West
Salt Lake City, Utah 84114-0873
Direct: [phone]
Office: [phone]
[e-mail]

This electronic transmission may contain confidenal and privileged informaon. This message is intended only for the
use of the individual or enty to which it is addressed and may contain informaon that is exempt from disclosure
under applicable federal or state law. If the reader of this message is not the intended recipient or the employee or
agent responsible for delivering the message to the intended recipient, you are hereby nofied that any disseminaon,
distribuon, or copying of this communicaon is strictly prohibited. If you have received this communicaon in error,
please nofy us immediately by telephone and destroy the original message received by you.

One aachment • Scanned by Gmail
Director's Disposi…
3/3/25, 3:57 PM Promontory Point Class V Permit - Director's Dispositive Motion as to the Meaning of Utah Code § 19-6-108(10)(b) - dwmrcsubmit@…
https://mail.google.com/mail/u/0/d/AEoRXRRnsinZL74qV8VCOXwom1SLjVt_ci51uiGmhHD7fwhTRNiS/popout?ver=1wptpn41dpcjd&msg=%23msg-f%…1/1
1
Raymond D. Wixom (#3532) Assistant Attorney General
DEREK E. BROWN (#10476)
Utah Attorney General P.O. Box 140873 Salt Lake City, Utah 84114-0873 385-414-0664
[e-mail]
Attorney for Director, Utah Division of Waste Management and Radiation Control BEFORE THE EXECUTIVE DIRECTOR OF THE UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY In the Matter of: DIRECTOR’S DISPOSITIVE MOTION AS TO THE MEANING OF UTAH CODE § 19-6-108(10)(b)

Richard D. McKelvie Administrative Law Judge

Promontory Point Resources, LLC Petition for Review of Director’s Order Denying Class V Permit
Docket No. SW416
February 14, 2025 Pursuant to Utah Code § 19-1-301.5(1)(b) and (8)(a)(ii), Respondent Director of the Utah
Division of Waste Management and Radiation Control (the Director) hereby moves the
Administrative Law Judge (ALJ) for an order finding that the Director correctly interpreted Utah
Code § 19-6-108(10)(b). This Dispositive Motion presents a pure question of statutory
construction and therefore precedes briefing on the merits, where the Director’s findings are to
be viewed under a clear error standard based on Petitioner’s marshaling of the evidence. Utah
Code § 19-1-301.5(6)(d)(v)(G)-(H).
INTRODUCTION AND PROCEDURE UNDER UTAH CODE § 19-1-301.5
1. This is a special adjudicative proceeding and internal agency review under Utah Code §
19-1-301.5. The subject of this proceeding involves the Director’s denial of PPR’s commercial
2
Class V permit application for the Promontory Point Landfill (PPL) based on the Director’s
determination that PPR failed to demonstrate a “need in the state for the additional capacity for
the management of nonhazardous solid . . . waste” under Utah Code § 19-6-108(10)(b)(i).
Admin. Rec. at 5466-72.
2. Utah Code § 19-1-301.5 governs special adjudicative proceedings arising from “permit
orders” issued by directors within the Utah Department of Environmental Quality (UDEQ).
Section 301.5 procedures apply in lieu of the Utah Administrative Procedures Act, Utah Code §
63G-4-101 et seq. Friends of the Great Salt Lake v. Dep't of Env't Quality, Div. of Waste Mgmt.
& Radiation Control, 2023 UT App 58, ¶ 24, 531 P.3d 767 (discussing the appropriate standards
of review for special adjudicative proceedings arising from UDEQ permit orders). The ultimate
question presented in a special adjudicative proceeding is whether the Director’s findings
supporting the permit order are clearly erroneous based on a petitioner’s marshaling of the
evidence. See Utah Code § 19-1-301.5(14)(b). In substance, special adjudicative proceedings
are an internal, appellate-like review of the Director’s factual, technical, and scientific
determinations and not a trial de novo, preparatory to direct appellate review. See id.
3. Utah Code § 19-1-301.5 does not fully define the procedures that apply to special
adjudicative proceedings, and the proceedings include elements of appellate-like and trial-like
procedures. Friends of the Great Salt Lake, 2023 UT App 58 at ¶ 24 n.12. On the one hand, the
code places the Director in the position of the finder of fact and the ALJ in an appellate posture.
On the other hand, “dispositive motions” in a special adjudicative proceeding represent trial-like
procedures, by analogy to the Utah Rules of Civil Procedure (URCP).1 Yet, the URCP are not a
strong procedural fit: URCP 12 tests a plaintiff’s complaint, while URCP 56 tests the sufficiency

1 See Utah Code § 19-1-301.5(1)(b) (providing that dispositive motions in special adjudicative proceedings are to be “equivalent to” Utah Rules of Civil Procedure 12 and 56).
3
of evidence for a trial. By contrast, Section 301.5 presents a clear error review based on a
marshaling requirement in the petitioner’s brief on the merits. But, like pretrial dispositive
motions, Section 301.5 anticipates that the ALJ will rule on dispositive motions prior to briefing
on the merits. See Utah Code § 19-1-301.5(8)(a)(iii). Thus, the procedure serves the function of
scoping the briefing process and hearing, by analogy.
RELIEF REQUESTED
4. The Director interprets Utah Code § 19-6-108(10)(b)(i) to mean that to qualify under this
provision for a commercial solid waste landfill permit, PPR must demonstrate that there is a need
in the State of Utah for additional commercial, physical capacity to landfill solid waste.
Promontory Point Landfill’s (PPL) existing noncommercial physical capacity is not relevant to
that determination. The Director asks the ALJ to recommend to the Executive Director that she
dispositively determine, as a matter of law, that this is what Subsection (10)(b)(i) means.
5. This Dispositive Motion is “equivalent to” a motion for summary judgment. See Utah
Code § 19-1-301.5(1)(b). However, there is no need for a formal statement of undisputed
material facts because this Dispositive Motion is intended to resolve a pure question of law—the
legal interpretation and meaning of Utah Code § 19-6-108(10).2 The facts will be tested against
the law during the next phase of this proceeding, that is, briefing on the merits and the final
hearing.
6. Utah Code § 19-6-108(10) has three subsections, two of which have their own
subsections. Subsection (10)(a) requires the permit applicant to include, in the permit
application, information demonstrating that there is a market for the proposed commercial
facility. Subsection (10)(b) requires the applicant to describe the public benefits of the proposed

2 See Hertzske v. Snyder, 2017 UT 4, ¶ 5, 390 P.3d 307 (providing that statutory interpretation presents a question of law).
4
facility, including need for additional capacity in the state. Subsection (10)(c) requires the
applicant to provide its compliance history.
7. PPR and the Director disagree as to the interpretation of Subsection (10)(b)(i). More
specifically, the question is whether Subsection (10)(b)(i), requiring that PPR describe the “need
in the state for the additional capacity for the management of nonhazardous solid or hazardous
waste,” (the Physical Capacity Need) represents an independent element that is distinct from
Subsection (10)(a), requiring that PPR present “evidence that the proposed commercial facility
has a proven market of nonhazardous solid or hazardous waste” (the General Market Need). The
parties’ dispute boils down to whether the Physical Capacity Need is a stand-alone element of
Utah Code § 19-6-108(10), or whether the Physical Capacity Need is merely a subset of General
Market Need element, as PPR contends.
8. PPR and the Director also disagree as to whether, as the Director urges, Subsection
(10)(b)(i) requires PPR to evaluate its proposed commercial capacity against other commercial
and noncommercial capacity. PPR argues that the Utah State Legislature (the Legislature) could
not have meant PPR to evaluate commercial capacity against all capacity, including
noncommercial capacity. The Director argues that the Legislature wants the Director to be
satisfied that there is a need, within the State of Utah, for additional commercial physical
capacity, and that the Legislature intended for “need for additional capacity” to be determined by
evaluating PPL’s proposed commercial capacity against all other capacity, commercial and
noncommercial.
9. This Dispositive Motion presents a pure question of law, and therefore it is appropriate
within the procedural context of Section 301.5 for the ALJ to rule on the meaning and
application of the code prior to PPR’s attempting to marshal the evidence in its brief on the
5
merits, and the Director’s response to PPR’s brief on the merits. Without a clear understanding
of the meaning of Subsection (10)(b)(i), the Director anticipates that the parties’ briefing on the
merits will become unnecessarily convoluted, resulting in an unnecessarily confusing record. In
short, this Dispositive Motion seeks a ruling from the ALJ defining the scope of the briefs on the
merits and defining the scope of the statutory elements that PPR must satisfy.
LEGAL ARGUMENT
I. The Cannons of Statutory Construction Support the Director’s Interpretation that Physical Capacity Need is Distinct from General Market Need.
10. The Director interprets Subsection (10)(b)(i) to mean that there needs to be evidence to
support a finding that there is a Physical Capacity Need that is distinct from the General Market
Need. PPR contends that the Physical Capacity Need is merely a subset of the General Market
Need, or in other words, that sufficient evidence of General Market Need, by itself, is adequate
to support the Physical Capacity Need. Admin. Rec. at 4449-50; Admin. Rec. at 4575 (providing
on Page 32 of 74 that NERA’s Needs Assessment Report shows the need for PPL).
11. The Director’s conclusion that the Physical Capacity Need is distinct from the General
Market Need is supported by four broadly accepted canons of statutory construction. First, the
plain meaning of “public benefits” and “need for additional capacity” support the Director’s
interpretation. Second, the context of the use of “need for additional capacity” within Subsection
(10) and the Utah Code generally supports the Director’s interpretation. Third, the Director’s
application of the code gives effect to each word in Subsection (10)(b). Fourth, the Director’s
interpretation is consistent with the Legislature’s intent.
A. The Plain Meaning of Utah Code § 19-6-108(10)(b)(i) Supports the Director’s Interpretation.

12. Statutes “should be interpreted and applied according to the plain import of their
language as it would be understood by persons of ordinary intelligence and experience.” Wisden
6
v. Dixie Coll. Parking Comm., 935 P.2d 550, 553 (Utah Ct. App. 1997). Moreover, “[i]n
interpretating statutory texts, courts use the ordinary meaning of the terms unless context
requires a different result.” Gonzales v. Carhart, 550 U.S. 124, 152 (2007).
13. “If the legislature has not defined a term, we must look to other sources ‘to derive its
meaning—to either the ordinary meaning of the word, or to its technical sense as a legal term of
art.’” GeoMetWatch Corp. v. Utah State Univ. Rsch. Found., 2018 UT 50, ¶ 15, 428 P.3d 1064.
“To be a term of art, there must be ‘a firmly rooted ... notion of the word or phrase’ with ‘one
established meaning ....’” Id. at ¶ 16. “Words and phrases are presumed to have been used
according to their plain, natural, and common import and the usage of the language, unless
obviously used in a technical sense.” Parkinson v. State Bank of Millard Cnty., 35 P.2d 814, 821
(Utah 1934).
1. The Plain Meaning of “Public Benefits” Supports the Director’s Interpretation.
14. In describing the Physical Capacity Need, the Legislature did not provide a separate
definition of “public benefits.” It did not say this was a technical, economic phrase. It is by no
means apparent that the Legislature obviously used “public benefits” in a technical sense.
Instead, thoughtful reading shows that this phrase was “obviously” used in its plain, ordinary
sense. See Hayes v. Intermountain GeoEnvironmental Servs., Inc., 2021 UT 62, ¶ 24, 498 P.3d
435.
15. The plain meaning of “public benefits” as used in Utah Code § 19-6-108(10)(b) is “things
that benefit the public,” “benefits to society,” or other meanings that equate to “good for the
public.” Admin. Rec. at 5480. There is nothing in Utah Code § 19-6-108(10), the Solid and
Hazardous Waste Act (the Act), or the Environmental Quality Code suggesting that the
Legislature used “public benefits” as a technical term from the field of economics. Whether it is
7
a technical term used in the field of economics is irrelevant unless the Legislature intended
“public benefits,” as used in Utah Code § 19-6-108(10)(b), to have that technical, field of
economics meaning. PPR has presented no evidence showing the Legislature used “public
benefits” in a technical, economic sense, and even the “Benefit-Cost Analysis” NERA cited in its
reply to SC&A Response to the Needs Assessment Report is insufficient. See Admin. Rec. at
4630. Instead, PPR offers NERA’s opinion that the Legislature must have used these terms in a
technical, economic sense and incorrectly argues that Subsection (10)(b)(i) can only be
understood as an extension of Subsections (10)(a)(ii) and (iii). Id.; See Petition for Review at 30-
31. The ALJ should be unconvinced by PPR’s and NERA’s arguments that the Legislature used
“public benefits,” as a technical, economic phrase. GeoMetWatch Corp., 2018 UT 50 at ¶ 24.
16. Accordingly, the Director’s interpretation of “public benefits” is supported by the plain
meaning of that phrase.
2. The Director’s Interpretation of “Public Benefits” is Further Supported by Other Uses in the Utah Code. 17. “Public benefits” is used twice in the Environmental Quality Code—once in the Act,
Utah Code § 19-6-108(10)(b), and once in the Radiation Control Act, Utah Code § 19-3-306(5).
Under Utah Code § 19-3-306(5), the Department of Environmental Quality may not issue a
construction and operating license for a nuclear waste management facility unless the license
application demonstrates the public benefits of the proposed facility. There is no indication that
the Legislature used “public benefits” under that subsection in a technical, economic sense. The
context of that subsection and the rest of Part 3 of the Radiation Control Act supports a similar
conclusion that “public benefits,” as used in Utah Code § 19-6-108(10)(b), does not have a
technical, economic meaning.
8
18. Evaluating the use of “public benefits” in other contexts of the Utah Code is also helpful.
For example, Utah’s Benefit Corporation Act defines “general public benefit” as “a material
positive impact on society and the environment.” See Utah Code § 16-10b-103(9). Moreover,
“public benefit” is used three times in the Government Records Access and Management Act.
See Utah Code §§ 63G-2-206(2)(a)(iii), (6)(b)(i), and (3)(b)(i). “Public benefit” is also used in
the Utah Administrative Procedures Act. See Utah Code § 63G-4-401(2)(b)(ii). While there
may be collateral economic implications related to the application of some of these statutes, they
do not indicate that the Legislature used “public benefit” to have a technical, economic meaning
when used elsewhere in the Utah Code.
19. Therefore, the Director’s interpretation of “public benefits” is supported by other uses in
the Utah Code.
3. The Plain Meaning of “Need for Additional Capacity” Supports the Director’s Interpretation.
20. Under Subsection (10)(b)(i), an applicant is required to describe the public benefits of its
proposed commercial landfill by showing “the need in the state for the additional capacity for the
management of … solid waste.” In describing the Physical Capacity Need, the Legislature did
not provide a separate definition of “need . . . for additional capacity for the management of . . .
solid waste.” It did not say this was a technical, economic phrase. It is by no means apparent
that the Legislature obviously used “need . . . for additional capacity for the management of . . .
solid waste” in a technical sense. Instead, thoughtful reading shows this phrase was “obviously”
used in its plain, ordinary sense. See Hayes, 2021 UT 62 at ¶ 24.
21. The plain meaning of “need in the state for the additional capacity for the management of
… solid waste” is “need for additional commercial physical space to manage—to landfill, in
PPR’s case—solid waste.” To make this analysis simpler, the Director understands the plain
9
meaning of “need for additional capacity” to mean the “need for additional space,” commercial
space, under Subsection (10)(b).3 In so concluding, the Director is not “add[ing] substantive
words” to the statute, he is explaining “the plain import of [the statute’s] language as it would be
understood by persons of ordinary intelligence and experience.” Petition for Review at 2; see
Wisden, 935 P.2d at 553; see also Salt Lake City v. Roberts, 2002 UT 30, ¶ 22, 44 P.3d 767
(providing “[a] majority of cases permit the substitution of one word for another if necessary to
carry out the legislative intent or express clearly manifested meaning.”).
22. “Capacity,” as used in Subsection (10)(b)(i), has the plain dictionary meaning that is
associated with the “amount” of something, which is substantiated by the leading dictionaries
used to determine the ordinary meanings of words. See GeoMetWatch Corp., 2018 UT 50 at ¶
21 (observing that “[d]ictionaries provide a useful starting point when assessing ordinary
meaning.”). The Oxford English Dictionary defines ‘capacity’ as ‘volume, solid content.’
Capacity, OXFORD ENGLISH DICTIONARY (4th ed. 2006). The Merriam-Webster Dictionary
similarly defines ‘capacity’ as “the potential or suitability for holding, storing, or
accommodating’ and ‘the maximum amount or number that can be contained or accommodated.”
Capacity, MERRIAM-WEBSTER DICTIONARY (11th ed. 2019). The Latin origin of “capacity” is
“capability of holding much.” See Capacity, BLACK’S LAW DICTIONARY (12th ed. 2024).
23. Accordingly, the Director’s interpretation of “need for additional capacity” is supported
by the plain meaning of that phrase.

3 Subsection (10)(b)(i) does not require “two different market analyses;” it requires demonstration of a need for additional commercial capacity against both commercial and noncommercial capacity. See Petition for Review at 33.
10
4. The Director’s Interpretation of “Need for Additional Capacity” is Further Supported by Other Uses in the Environmental Quality Code.

24. The term, "capacity" is used in fourteen sections of the Environmental Quality Code.
Each of these uses is at least analogous in meaning to volumetric capacity, as used in Utah Code
§ 19-6-108(10)(b)(i). Some relate to waste capacity; some specify units of measurement, such as
gallons or tonnage; some identify electrical generation capacity; and one mentions characteristics
of waste tires. See Ex. 1. Eight of these citations are in the Act, and four of them are in Utah
Code § 19-6-108. Id. No use of “capacity” in the Environmental Quality Code suggests that the
Legislature used “capacity” as a technical, economic term. Id. There is no reason to think the
Legislature used “capacity” as a technical, economic term in Subsection (10)(b)(i), and thereby
departed from how it used “capacity” in other parts of the Environmental Quality Code. The
Legislature thus used “capacity” to mean physical volume or space, as it did in other parts of the
Environmental Quality Code.
25. Accordingly, the Director’s interpretation of “need for additional capacity” is supported
by other uses in the Environmental Quality Code.
B. The Director’s Interpretation of “Need for Additional Capacity” is Supported by the Context of Utah Code § 19-6-108(10). 26. When interpreting statutory schemes, courts generally “assess the language and structure
of the statute.” State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In doing so, the court will
interpret statutory provisions “in harmony with other statutes in the same chapter and related
chapters.” Id. at ¶ 11. The court “presume[s] the legislature uses each word [in the statute]
advisedly.” Id. at ¶ 23.
27. Subsections (10)(a), (10)(b), and (10)(c) are parallel in statutory structure. Neither is
subordinate to the other, nor do the two elements even refer to each other. Neither is dependent
11
on the other for its meaning. The Physical Capacity Need under Subsection (10)(b) does not
depend on the General Market Need under Subsection (10)(a) or compliance history under
(10)(c), nor they on it, to be understood. PPR’s attempt to conflate Subsections (10)(a)(ii) and
(10)(a)(iii) with Subsection (10)(b)(i) would swallow Subsection (10)(b)(i), not the other way
around, as PPR argues. See Petition for Review at 31. From the structure of Subsection (10),
then, there exists every reason to treat Subsection (10)(a) and its sub-elements (i) through (iii) as
stand-alone requirements compared to Subsection (10)(b) and its sub-elements (i) through (iv).
28. Accordingly, the context of the Physical Capacity Need supports the Director’s
interpretation.
C. The Director’s Interpretation Gives Effect to Each Word in the Statute.
29. In interpreting statutory schemes, the court will “avoid any interpretation which renders
parts or words … inoperative or superfluous in order to give effect to every word in the statute.”
Rushton, 2017 UT 21 at ¶ 11. The Director’s interpretation of the Physical Capacity Need as
distinct from General Market Need gives effect to each word in the statute. His interpretation
does not render any part of the statute inoperative or superfluous.
30. The Legislature required PPR to satisfy the Physical Capacity Need and the General
Market Need. The Physical Capacity Need in Subsection (10)(b)(i) has nothing to do with the
General Market Need discussed in Subsection (10)(a)(ii). See Petition for Review at 31. The
General Market Need requires PPR to show it has a market. The Director does not dispute that
PPR has shown a market. Admin. Rec. at 5471, 5510. The Physical Capacity Need requires
PPR to show there is a need for physical commercial disposal capacity. Satisfying Subsection
(10)(a)(ii) does nothing to satisfy Subsection (10)(b)(i), and complying with Subsection
(10)(b)(i) does not conflict with Subsection (10)(a)(ii). See Petition for Review at 31; Admin.
12
Rec. at 5482. Therefore, to give effect to each word in the statute, applicants, like PPR, are
required to establish each of the distinct elements of the commercial Physical Capacity Need and
each of the distinct elements of the General Market Need.
31. Accordingly, the Director’s interpretation gives effect to each word in Utah Code § 19-6-
108(10)(b).
D. The Director’s Interpretation is Consistent with the Legislature’s Intent and Consideration of Legislative History is Warranted.

32. When a court interprets a statute, its “primary objective is to ascertain the intent of the
legislature.” GeoMetWatch Corp., 2018 UT 50 at ¶ 15. The best evidence of the Legislature’s
intent is the language itself, so reviewing tribunals generally “look first to the plain language of
the statute.” Id.
1. The Director’s Interpretation is Consistent with the Legislature’s Intent to
Have Commercial Facilities Satisfy More Requirements than Noncommercial Facilities. 33. In 1990, the Legislature added a definition for “commercial nonhazardous solid waste
facility” to the Act. See Utah Code § 19-6-102(3)(a); Admin. Rec. at 739-48. The Legislature
also excluded from the definition of commercial solid waste facility a commercial facility that “is
solely under contract with a local government within the state to dispose of nonhazardous solid
waste generated within the boundaries of the local government.” Utah Code § 19-6-
102(3)(b)(iii).4 The Legislature did not prohibit those holding a noncommercial Class I landfill

4 Notably, the Legislature places no limit on the capacity of landfills owned by local governments, often called
“municipal landfills,” or landfills “solely under contract” with local governments. It does, however, place limits on the capacity of commercial landfills and requires them to evaluate their proposed commercial capacity against all other capacity, commercial and noncommercial. Compare Utah Code § 19-6-108(10)(b)(i) with Petition for Review at 30.
13
permit from obtaining a commercial Class V permit, but it required those seeking such a
conversion to comply with all other permitting requirements. See Admin. Rec. at 3181-82.
34. When the Legislature created the distinction between commercial landfills and “solely
under contract” landfills, at least some legislators were concerned with the possibility of Utah
becoming the “dumping ground” for the nation’s solid waste. Admin. Rec. at 737-38. The
Legislature believed that additional oversight for commercial landfills than noncommercial
landfills would reduce this possibility.
35. To effectuate this additional oversight, the Legislature required commercial facilities to
meet each of the elements under Utah Code § 19-6-108(10). As demonstrated by the plain
meaning of the statute, which is described in detail above, the Legislature intended commercial
facilities to satisfy each requirement under Utah Code § 19-6-108(10). Commercial facilities
were to demonstrate a General Market Need. Commercial facilities were also to demonstrate a
Physical Capacity Need. Had the Legislature intended the General Market Need described in
Subsection (10)(a) to include the Physical Capacity Need in Subsection (10)(b)(i), it would not
have set it out in a separate subsection. Had the Legislature intended a demonstration of General
Market Need described in Subsection (10)(a) to satisfy the Physical Capacity Need in Subsection
(10)(b)(i), it would not have provided for that additional requirement. No plausible reading of
the statute indicates the Legislature intended either of these results.
36. Accordingly, the Director’s interpretation is consistent with the Legislature’s intent to
have commercial facilities satisfy more requirements than noncommercial facilities.
2. PPR’s Misunderstanding of the Plain Meaning of Utah Code § 19-6-108(10)(b) and (10)(b)(i) Warrants Consideration of Legislative History.

37. The Director’s interpretation of Utah Code § 19-6-108(10)(b) and (10)(b)(i) is
dramatically different from PPR’s interpretation. Each party’s interpretation precludes the other
14
party’s interpretation. It is reasonable for the Director to imagine that the ALJ might therefore
consider the possibility that the meaning of the subsection is ambiguous. Indeed, if the
subsection remains ambiguous after reviewing the statute’s plain language, one may then seek
guidance from the legislative history to discern legislative intent. In Re Reinhart, 2012 UT 82, ¶
17, 291 P.3d 228. The Director will not have the opportunity later in this proceeding to present
legislative history for the first time if the ALJ were to decide “public benefits” is ambiguous.
Therefore, it is appropriate for the Director to point out that the legislative history of Subsection
(10)(b) gives no support to PPR’s contention that “public benefits,” “need,” or “capacity” are
technical, economics terms or should be understood outside their “plain meaning.”
38. Accordingly, PPR’s misunderstanding of the plain meaning of Utah Code § 19-6-
108(10)(b) and (10)(b)(i) warrants consideration of the legislative history.
3. The Canon of Constitutional Avoidance Does Not Save PPR’s Erroneous Reading.
39. Courts use the canon of constitutional avoidance to identify and follow the intent of the
Legislature. “[F]or the constitutional avoidance canon to even apply, ‘the statute must be
genuinely susceptible to two constructions’—a determination that is made ‘after, and not before,
its complexities are unraveled.” Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 24, 332 P.3d
900.
40. Utah Code § 19-6-108(10)(b) is not “genuinely susceptible to two constructions.” The
Director has unraveled any complexities in Subsections (10)(b) and (10)(b)(i) and, as explained
above, interpreted Utah Code § 19-6-108(10)(b) consistent with the Legislature’s intent. PPR
wishes the Legislature had intended the General Market Need to satisfy the Physical Capacity
Need, but that wish is unsupported by the canons of construction and the Legislature’s intent.
15
41. Accordingly, the canon of constitutional avoidance does not save PPR’s erroneous
reading of Subsection (10)(b).
CONCLUSION
42. The Director’s interpretation of Utah Code § 19-6-108(10)(b), requiring evidence and
findings of a commercial Physical Capacity Need distinct from the General Market Need, aligns
with the plain meaning of the statute, the statutory context, the need to give effect to each word
in the statute, and the Legislature’s intent. The ALJ should therefore recommend that the
Executive Director issue an order that:
a. Utah Code § 19-6-108(10)(b) means PPR must demonstrate the need in the State
of Utah for additional commercial, physical capacity to manage solid waste. In making
this demonstration, PPR must consider existing commercial and noncommercial capacity;
and
b. In any brief on the merits, PPR must marshal the evidence supporting both the
General Market Need and a separate Physical Capacity Need, as required by the code.
DATED this 14th Day of February 2025.

DEREK E. BROWN ATTORNEY GENERAL

/s/ Raymond D. Wixom Raymond D. Wixom Assistant Attorney General Attorney for the Director of the Division of
Waste Management and Radiation Control

16
EXHIBIT 1
USE OF “CAPACITY” IN THE SOLID AND HAZARDOUS WASTE ACT AND
ENVIRONMENTAL QUALITY CODE
Solid and Hazardous Waste Act
Citation Text
Utah Code § 19-6-104(3)(b)(ii) “Provide an estimate of solid waste capacity needed in the state for the next 20 years.”
Utah Code § 19-6-104(3)(b)(iv) “Evaluate solid waste treatment, disposal, and storage options, as well as solid waste needs and existing capacity.”
Utah Code § 19-6-108(1)(b)
“An application for modification of a commercial hazardous waste incinerator if
the construction or the modification would increase the hazardous waste incinerator capacity above the capacity specified in the operation plan as of January 1, 1990, or the capacity specified in the operation plan application as of January 1, 1990, if no operation plan approval has been issued as of January 1, 1990.”
Utah Code § 19-6-108(1)(c)
“An application for modification of a commercial nonhazardous solid waste incinerator if the construction of the modification would cost 50% or more of the cost of construction of the original incinerator or the modification would result in an increase in the capacity or throughput of the incinerator of a cumulative total of 50% above the total capacity or throughput that was approved in the operation plan as of January 1, 1990, or the initial approved operation plan if the initial approval is subsequent to January 1, 1990.”
Utah Code § 19-6-108(2)
“Capacity under Subsection (1)(b) shall be calculated based on the throughput tonnage specified for the trial burn in the operation plan or the operation plan application if no operation plan approval has been issued as of January 1, 1990, and on annual operations of 7,000 hours.”
Utah Code § 19-6-108(10)(b)(i) “. . . the need in the state for the additional capacity for the management of nonhazardous solid or hazardous waste.”
Utah Code § 19-6-120(1)(b)
“An application for modification of a commercial hazardous waste incinerator if the construction or the modification would increase the commercial hazardous
waste incinerator capacity above the capacity specified in the operation plan as of January 1, 1990, or the capacity specified in the operation plan application as of January 1, 1990, if no operation plan approval has been issued as of January 1,
1990.”
Utah Code § 19-6-120(2)
“Capacity under Subsection (1)(b) shall be calculated based on the throughput tonnage specified for the trial burn in the operation plan or the operation plan application if no operation plan approval has been issued as of January 1, 1990, and on annual operations of 7,000 hours.”
Environmental Quality Code
Citation Text
Utah Code § 19-2-109.4(2) “The division shall accept an application for an alternative permit from a project entity that has previously obtained a transition permit to authorize the same new
electrical generating capacity contemplated by the transition permit.”
Utah Code § 19-2-109.4(3)(b) “The conditions of the transition permit shall cease to apply, including requirements to reduce the capacity of existing generating units at the electrical generation facility.”
Utah Code § 19-2-109.4(6) “The division shall evaluate an application for an alternative permit independently from any preexisting permit or transition permit based on updated
17
assumptions, modeling, and requirements established in rule by the division and may rely upon the reduction of capacity of the existing electrical generation facility only as necessary to ensure that emissions of the new generating facility
do not exceed thresholds established by federal law which would necessitate new source review as a major modification.”
Utah Code § 19-2a-103(1) “(a) ‘Gasoline cargo tank’ means a tank that: (i) is intended to hold gasoline; (ii) has a capacity of 1,000 gallons or more.”
Utah Code § 19-3-104(12)(c)
“Financial assurance cost estimates for a single approved waste disposal unit for which the volume of waste already placed and proposed to be placed in the unit
within the surety period is less than the full waste capacity of the unit shall reflect the closure and postclosure costs for a waste disposal unit smaller than the approved waste disposal unit, if the unit could be reduced in size, meet closure requirements, and reduce closure costs.”
Utah Code § 19-3-104(12)(d)
“Financial assurance cost estimates for two approved adjacent waste disposal units that have been approved to be combined into a single unit and for which the combined volume of waste already placed and proposed to be placed in the
units within the surety period is less than the combined waste capacity for the two separate units shall reflect either two separate waste disposal units or a single combined unit, whichever has the lowest closure and postclosure costs.”
Utah Code § 19-3-105(4)(b)
“Would cost 50% or more of the cost of construction of the original radioactive waste facility or the modification would result in an increase in capacity or throughput of a cumulative total of 50% of the total capacity or throughput which was approved in the facility license as of January 1, 1990, or the initial
approval facility license if the initial license approval is subsequent to January 1, 1990.”
Utah Code § 19-3-107(2) “The plan shall: (a) provide an estimate of radioactive waste capacity needed in the state for the next 20 years.”
Utah Code § 19-3-107(2)(c) “Evaluate radioactive waste treatment and disposal options, as well as radioactive waste needs and existing capacity.”
Utah Code § 19-4-104(a)(v) “Governing capacity development in compliance with Section 1420 of the
federal Safe Drinking Water Act, 42 U.S.C. Sec. 300f et seq.”
Utah Code § 19-4-104(4)(d)
“Include, as part of system-specific standards, necessary fire storage capacity in
accordance with the state fire code adopted under Section 15A-1-403 and as determined by the local fire code official.” Utah Code § 19-6-402(2)(c) “Has the capacity to hold 501 gallons or more.”
Utah Code § 19-6-415(1)(a)(i) “Is a farm or residential tank with a capacity of 1,100 gallons or less and is used for storing motor fuel for noncommercial purposes.”
Utah Code § 19-6-505(1)(c)
“Any public entity or any public entity in combination with a private entity agreeing to make solid waste management facilities available may, in the
agreement, agree to make available to other public entities a specified portion of the capacity of the solid waste management facilities, without regard to its future need of the specified capacity for its own use and may in the agreement agree to increase the capacity of its solid waste management facilities from time to time, as necessary, in order to take care of its own needs and to perform its obligations to the other parties to the agreement.”
Utah Code § 19-6-805(2) “The fee for each tire with a rim diameter up to and including 24.5 inches, single
or dual bead capacity is $1.”
Utah Code § 19-13-106(2)(c) “The amount of available landfill capacity to serve the zone.”
18
CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of February 2025, I caused a copy of the foregoing DIRECTOR’S DISPOSITIVE MOTION AS TO THE MEANING OF UTAH CODE § 19-6-108(10)(B) to be sent by electronic mail to the following: Administrative Proceedings Records Officer
[e-mail]
Richard D. McKelvie Administrative Law Judge [e-mail]

Bradley R. Cahoon Tyler R. Cahoon Cole P. Crowther Dentons Durham Jones Pinegar
[e-mail]
[e-mail] [e-mail] Raymond Wixom
Assistant Attorney General for Director
[e-mail] Brenden K. Catt Assistant Attorney General
[e-mail]
Douglas J. Hansen Director, Division of Waste Management and Radiation Control [e-mail]

/s/ Andrea Gaytan Andrea Gaytan