DSHW-2025-002026

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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 REPLY TO PROMONTORY POINT RESOURCES,
LLC’S OPPOSITION TO THE DIRECTOR’S MOTION TO DISMISS Richard D. McKelvie
Administrative Law Judge

Promontory Point Resources, LLC Petition for Review of Director’s Order Denying Class V Permit
Docket No. SW416
March 18, 2025

Pursuant to Utah Code § 19-1-301.5(1)(b) and (8)(a)(ii) and Utah Administrative Code
R305-7-211, Respondent Director of the Utah Division of Waste Management and Radiation
Control (the Director) hereby submits this reply to Petitioner Promontory Point Resources, LLC’s
(PPR) Opposition to the Director’s Motion to Dismiss (PPR’s Response).
INTRODUCTION
1. 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.
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2. The Director’s Dispositive Motion to Dismiss PPR’s dormant Commerce Clause Claim
(the Director’s Dispositive Motion) explained that the Executive Director of the Department of
Environmental Quality (the Executive Director) lacks subject matter jurisdiction to question the
constitutionality of Utah Code § 19-6-108(10)(b). PPR’s Response does not refute that the
Executive Director lacks subject matter jurisdiction but instead attempts to reframe the dormant
Commerce Clause issue as one of statutory interpretation. This attempt is deficient in several
respects.
3. Accordingly, the Administrative Law Judge (ALJ) should recommend that the Executive
Director grant the Director’s Dispositive Motion and dismiss PPR’s claim that the Director’s
interpretation and application of Utah Code § 19-6-108(10)(b)(i) violates the dormant Commerce
Clause.
ARGUMENT
4. PPR’s attempt to reframe the dormant Commerce Clause issue is deficient in three respects.
First, it fails to dispute that the Executive Director lacks subject matter jurisdiction to address
constitutional questions. Second, it attempts to apply the canon of constitutional avoidance to the
Director, ALJ, and Executive Director. Third, and assuming without conceding the application of
that canon is appropriate, it fails to demonstrate why the ALJ or Executive Director can address
constitutional questions. Before moving to those substantive arguments, the Director hopes to
quell PPR’s clear misunderstanding of the procedural posture of this matter.
I. PPR’s Suggested Standard of Review is Antithetical to the Procedural Posture of this Matter.
5. PPR’s Response suggests that in reviewing the Director’s Dispositive Motion “all factual
allegations in [PPR’s Petition for Review] must be accepted as true.” PPR’s Resp. at 2. PPR then
analogizes to Hudgens v. Prosper, Inc., to suggest that “a motion to dismiss ‘should be granted
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only if, assuming the truth of the allegations in the complaint and drawing all reasonable inferences
therefrom in the light most favorable to the plaintiff, it is clear that the plaintiff is not entitled to
relief.’” See id.; see also 2010 UT 68, ¶ 14, 243 P.3d 1275.
6. Applying a Utah Rules of Civil Procedure (URCP) standard of review to the Director’s
Dispositive Motion is a procedural non sequitur. This is an internal agency review under Utah
Code § 19-1-301.5, which governs special adjudicative proceedings arising from the Director’s
permit order denying PPR’s Class V Application (the Permit Order). See Utah Code § 19-1-
301.5(1)(g)(i). The ultimate question presented here is whether the Director’s findings supporting
the Permit Order are clearly erroneous based on a petitioner’s marshaling of the evidence through
the brief on the merits. See id. § 19-1-301.5(14)(b).
7. In scoping the issues in preparation for the brief on the merits, parties may file “dispositive
motions.” Id. § 19-1-301.5(1)(b). While “dispositive motions” under Section 301.5 are described
as being “equivalent to” motions under the URCP, this analogy can only be taken so far. See id.
This process is not a trial in district court initiated by pleadings subject to dismissal under URCP
12. Id. § 19-1-301.5(9)(a); Friends of 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. Rather, this is a special
adjudicative proceeding to review the Permit Order under Section 301.5, through which pre-
briefing “dispositive motions” serve a specific and limited procedural purpose: to define and limit,
as appropriate, the anticipated briefing on the merits.
8. PPR’s reliance on the URCP 12(b)(6) standard of review demonstrates its
misunderstanding of the specific and limited procedural purposes served by pre-briefing
dispositive motions under Section 301.5. Viewing the “facts” in the light most favorable to the
non-moving party is a standard that simply has no relevance to the statutory Section 301.5 process.
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9. PPR’s reliance on Hudgens further demonstrates its misunderstanding of the procedural
posture of this matter because it is factually and procedurally distinct. Factually, this is not a suit
between private parties, alleging claims arising in tort, as it was in Hudgens. Hudgens, 2010 UT
68 at ¶ 6. Procedurally, this is not a state court appellate review of a district court granting a motion
to dismiss under URCP 12(b)(6), as it was in Hudgens. Id. ¶ 14; Dir. Disp. Mot. at 3. Instead, this
is a special adjudicative proceeding under Section 301.5, arising from PPR’s Petition for Review
of the Permit Order. Petition for Review at 1. The Director’s Dispositive Motion was a motion
under Section 301.5 “‘equivalent to’ a motion to dismiss.” Dir. Disp. Mot. at 3 (Emphasis added).
Hudgens inadequately captures these factual and procedural distinctions.
10. Accordingly, the standard of review PPR offers is predicated upon its fundamental
misunderstanding of the procedural posture of this matter, and the ALJ should instead consider
whether PPR’s dormant Commerce Clause claim should reach the brief on the merits stage. For
the reasons discussed below, it should not.
II. PPR Does Not Dispute that the Executive Director Lacks Subject Matter Jurisdiction
to Consider Constitutional Issues.
11. Utah’s Constitution and long-standing precedent make plain that administrative agencies
lack jurisdiction to consider constitutional issues. Courts created under the Utah Constitution and
by statute possess judicial power. See Utah Const. art. VIII, § 1. The Director, ALJ, and Executive
Director “may not exercise core judicial functions,” including considering constitutional questions
arising from the application of a state statute. Salt Lake City v. Ohms, 881 P.2d 844, 851-52 (1994).
Administrative agencies are elements of the executive branch, and such elements attempting to
perform core judicial functions raises significant separation of powers concerns. Erda Cmty. Ass’n
Inc. v. Grantsville City, 2024 UT App 126, ¶ 58, 558 P.3d 91.
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12. Apart from attempting to distinguish this matter from a single case cited in the Director’s
Dispositive Motion, which is discussed below, PPR’s opposition fails to confront the longstanding
precedent that administrative agencies lack jurisdiction to consider constitutional issues. In fact,
PPR concedes “that the Director cannot find as a matter of law that a statute is unconstitutional.”
PPR’s Resp. at 3. Utah precedent makes clear that this principle extends to the ALJ and the
Executive Director. See Erda Cmty. Ass’n Inc., 2024 UT App 126 at ¶ 58; Ohms, 881 P.2d at 848-
49. Coupling PPR’s concession with Utah’s overwhelming and clear precedent, the Director, ALJ,
and Executive Director lack jurisdiction to consider the dormant Commerce Clause issue that PPR
attempts to force these executive officers to confront.
13. Accordingly, on these grounds alone the ALJ should recommend the Executive Director
grant the Director’s Dispositive Motion, regardless of PPR’s attempts to reframe the dormant
Commerce Clause question as one of statutory interpretation.
III. The Canon of Constitutional Avoidance is Inapplicable.
14. PPR attempts to reframe its dormant Commerce Clause issue as one of statutory
interpretation. PPR’s Resp. at 2. This attempt is deficient because the canon of constitutional
avoidance is inapplicable to the Director, ALJ, and Executive Director. “For the constitutional
avoidance canon to even apply, ‘the statute must be genuinely susceptible to two constructions.’”
Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 24, 332 P.3d 900. If a statute is genuinely
susceptible to two constructions, reviewing courts should interpret a statute in a manner that avoids
constitutional issues. Castro v. Lemus, 2019 UT 71, ¶ 54, 456 P.3d 750.
15. PPR unsuccessfully argues that the Director, ALJ, and Executive Director should ignore
the lack of agency jurisdiction and instead reach the merits of the dormant Commerce Clause by
applying the judicial canon of constitutional avoidance. First, it suggests that under the canon of
constitutional avoidance, “the Director should have interpreted [Subsection] 10(b)(i) to avoid
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‘grave doubts as to the statute’s constitutionality.’” PPR’s Resp. at 2. PPR next suggests that that
“the ALJ can, and should, apply the canon of constitutional avoidance when considering the
Director’s interpretation of [Subsection] 10(b).” Id. at 3. Finally, PPR implies that “the canon of
constitutional avoidance prevents the Executive Director from accepting [the Director’s]
interpretation.” Id. at 5. This position fails on numerous grounds.
16. PPR’s position overlooks the glaring reality that the canon of constitutional avoidance
applies to courts interpreting statutes, not executive agencies implementing or reviewing statutes.
PPR cites Castro v. Lemus and Utah Dep’t of Transp. v. Carlson, both of which are Utah Supreme
Court cases that plainly recognize the canon of constitutional avoidance as a doctrine employed
by courts when interpreting statutes. Carlson, 2014 UT 24 at ¶ 23; Castro, 2019 UT 71 at ¶ 54.
The Utah Supreme Court has consistently characterized this canon as one of judicial restraint.
Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 55, 439 P.3d 593. PPR cites to
no authority, nor is the Director aware of any authority, that requires agencies to apply the canon
of constitutional avoidance when implementing or reviewing statutes. Moreover, PPR does not
argue that the ALJ and Executive Director are assuming the role of a court. Nor could it.
Administrative tribunals are not courts. Muddy Boys, Inc. v. Dep’t of Com., Div. of Occupation &
Pro. Licensing, 2019 UT App 33, ¶¶ 22-23, 440 P.3d 741; See generally Utah Code § 19-1-301.5
(devoid of a description that this administrative tribunal is a “court”). Accordingly, this
overwhelming precedent indicates that the canon of constitutional avoidance is inapplicable.
17. Even if we were to ignore the overwhelming precedent precluding the Director’s, ALJ’s,
and Executive Director’s application of the canon of constitutional avoidance, PPR has not pled
the rudimentary grounds for application of that canon. Notably, neither PPR’s Petition for Review
nor PPR’s Response alleges that Subsection (10)(b)(i) is genuinely susceptible to two
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constructions. See State v. Felts, 2024 UT 41, ¶ 38, 560 P.3d 787 (holding that the canon of
constitutional avoidance does not apply when a party fails to identify two plausible constructions
of a statute). PPR’s Response suggests that “Section 19-6-108(10)(b) is unambiguous, the
Director’s interpretation is nonsensical, and PPR’s interpretation controls.” PPR’s Resp. at 5.
PPR’s Petition for Review similarly suggests that the “statute is unambiguous.” Petition for
Review at 36. These are hardly allegations that Subsection (10)(b)(i) is genuinely susceptible to
two constructions. PPR cannot have it both ways, and its contradictory application of this canon
further undermines its attempts to ground the dormant Commerce Clause issue in statutory
interpretation.
18. The canon of constitutional avoidance is inapplicable, and therefore PPR’s attempt to
reframe its dormant Commerce Clause issue as supporting its canon of constitutional avoidance
position is baseless.
IV. Even if the Canon of Constitutional Avoidance Were Applicable, the ALJ and Executive Director Still Lack Subject Matter Jurisdiction.
19. PPR’s attempt to reframe its constitutional question as one of statutory interpretation fails,
but even if that attempt succeeded, the ALJ and Executive Director still lack subject matter
jurisdiction.
20. PPR suggests that “the Director should have interpreted [Subsection] 10(b)(i) to avoid
‘grave doubts as to the statute’s constitutionality.’” PPR’s Resp. at 2. PPR further suggests that
“the ALJ must reject [the Director’s] interpretation because it raises grave doubts as to its
constitutionality.” Id. at 5. But, at the same time, PPR suggests that it “is not requesting the ALJ
declare [Subsection] (10)(b)(i) unconstitutional.” Id. at 2. PPR believes the Executive Director
and ALJ possess jurisdiction to consider whether the Director’s interpretation and application
violates the dormant Commerce Clause, but they lack jurisdiction to declare a statute
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unconstitutional. This is not supported by the precedent cited in the Director’s Dispositive Motion
and is antithetical to the separation of powers.
21. Setting aside the fact that PPR left the precedent cited in the Director’s Dispositive Motion
largely unaddressed, PPR’s position is contrary to that precedent. The precedent cited in the
Director’s Dispositive Motion makes clear that only courts of law possess the power to consider
constitutional questions because that is a core judicial function. See Erda Cmty. Ass’n Inc., 2024
UT App 126 at ¶ 58. Core judicial functions, including the evaluation of the constitutionality of a
statute on its face or as applied, are non-delegable to other branches of government. Ohms, 881
P.2d at 848-49. Neither the ALJ nor the Executive Director can evaluate whether the Director’s
interpretation and application of Subsection (10)(b)(i) raises “grave doubts as to its
constitutionality” without evaluating the underlying dormant Commerce Clause question. This
evaluation would require, among other considerations, determining whether a substantial burden
exists, whether local putative benefits exist, and whether that burden outweighs those benefits. See
generally Nat’l Pork Producers Council v. Ross, 598 U.S. 356 (2023). Without evaluating each
element of a dormant Commerce Clause issue, the ALJ and Executive Director are in no position
to determine whether the Director’s application raises constitutional questions, as the canon of
constitutional avoidance requires.
22. Indeed, PPR recognizes as much and repeatedly engages in a dormant Commerce Clause
analysis. PPR’s Petition for Review characterizes the Director’s interpretation and application of
Subsection (10)(b)(i) as violating the dormant Commerce Clause and devotes roughly nine pages
to arguing the merits of that claim. Petition for Review at 2, 4, 8, 18-26. In its Response, PPR
again characterizes this issue as “[t]he Director’s interpretation of [Subsection] (10)(b) [. . .] results
in a violation of the dormant Commerce Clause.” PPR’s Resp. at 3. As PPR concedes and the
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precedent makes clear, neither the ALJ nor the Executive Director can evaluate this claim,
regardless of whether it is predicated upon the Director’s interpretation or his application of
Subsection (10)(b)(i). Accordingly, even if the canon of constitutional avoidance were applicable,
which it is not, the ALJ and Executive Director still lack jurisdiction to determine whether the
Director’s interpretation and application raises constitutional questions.
CONCLUSION
23. The parties’ separate dispositive motions and associated arguments have created an
adequate agency record to preserve PPR’s dormant Commerce Clause claims and document the
basis for their exclusion from the briefing on the merits. There is no need to clutter the briefing
on the merits with collateral litigation over the dormant Commerce Clause at this stage of the
special adjudicative proceeding.
24. For the reasons set forth herein, as well as those set forth in the Director’s Motion to
Dismiss PPR’s dormant Commerce Clause Claim, the ALJ should recommend the Executive
Director exclude PPR’s claim that the Director’s interpretation and application of Utah Code § 19-
6-108(10)(b)(i) violates the dormant Commerce Clause from the briefing on the merits in this
matter.
DATED this 18th Day of March 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
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CERTIFICATE OF SERVICE
I hereby certify that on this 18th day of March 2025, I caused a copy of the foregoing DIRECTOR’S REPLY TO PROMONTORY POINT RESOURCES, LLC’S OPPOSITION TO THE DIRECTOR’S MOTION TO DISMISS 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/ Raymond Wixom Raymond Wixom