AG-2022-000011

BEFORE THE EXECUTIVE DIRECTOR OF THE UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY In the Matter of:
Crescent Point U.S. Corporation’s
Application for Certification of the Surface Casing of the Deep Creek 7-27-4-2E Well as a Pollution Control Facility

FINAL ORDER ADOPTING RECOMMENDED DECISION
DISMISSING ADJUDICATIVE PROCEEDINGS July 27, 2021
Lucy B. Jenkins,
Administrative Law Judge
PROCEDURAL BACKGROUND
Based on my review of Administrative Law Judge (“ALJ”) Jenkins’ Findings of Fact,
Conclusions of Law, and Recommended Order dated December 29, 2020, Crescent Point U.S.
Corporation (“Crescent Point”) submitted an application to the Division of Water Quality
(“DWQ”) to certify the surface casing of an existing production well1 under the Pollution
Control Act.2 Certification is necessary to claim a sales and use tax exemption under the Act.
On July 22, 2016, Crescent Point submitted a revised application for certification of the well as a
“pollution control facility.”3 The application did not describe any “treatment works” associated
with the well.
On September 15, 2016, the Director of DWQ denied the revised application for
certification of the surface casing as a “pollution control facility.” On October 14, 2016,
Crescent Point filed a Request for Agency Action to contest the Director’s denial of the revised

1 Deep Creek 7-27-4-2E Well.
2 Utah Code §§ 19-12-101 et seq. 3 Utah Code § 19-12-102(6)(a) “Pollution Control Facility.”
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application for certification. An ALJ was appointed to hear the matter. The Director’s denial
was treated as a “permit order” for purposes of review in a special adjudicative
proceeding conducted under Utah Code §19-1-301.5.
The ALJ’s Conclusions of Law notes that the parties characterized the surface casing as a
“freestanding pollution control property”4 rather than as a “pollution control facility” during the
motion and hearing phase of the special adjudicative proceeding. On August 31, 2018, the ALJ
issued a Recommended Order in favor of certification. Following a review of the Recommended
Order, a prior Executive Director5 remanded the case back to the ALJ on January 25, 2019, with
instructions to conduct supplemental briefing consistent with Crescent Point’s Revised
Application which sought certification as a “pollution control facility” and not as a “freestanding
pollution control property.”
Later, on June 16, 2020, another Executive Director6 issued a Limited Remand Order
with instructions for the ALJ to remand the original certification determination back to the
Director for reconsideration and re-issuance of an amended permit order.7 Pursuant to the
Limited Remand Order, on September 3, 2020, the DWQ Director issued a revised permit order
denying Crescent Point’s revised application for certification as a “pollution control facility”
(“Amended Denial”).8
The ALJ subsequently reviewed the Director’s Amended Denial together with the briefs
and arguments presented by the parties during the special adjudicative proceeding and
supplemental briefing. Pursuant to Utah Code § 19-1-301.5 and Utah Admin. Code Rules R305-

4 Utah Code § 19-12-102(5)(a) “Freestanding Pollution Control Property.”
5 Alan Matheson, prior DEQ Executive Director. 6 L. Scott Baird, prior DEQ Executive Director.
7 Utah Code § 19-1-301.5(14)(a)(ii). 8 The amended denial superseded and replaced the Director’s September 15, 2016, denial.
3
7-101 to 113, R305-7-200 to 217, and the applicable sections of R305-7-601 to 623, on
December 29, 2020, the ALJ issued Findings of Fact, Conclusions of Law, and Recommended
Order on the Merits After Revised Permit Order. The ALJ now recommends that I (Kimberly D.
Shelley, Executive Director) affirm the Director’s amended denial of certification of the well as a
“pollution control facility.”
When the ALJ submits a proposed dispositive action to the Executive Director, the
Executive Director may, pursuant to Utah Code § 19-1-301.5(14)(a): (i) approve, approve with
modifications, or disapprove a proposed dispositive action; or (ii) return the proposed dispositive
action to the ALJ for further action as directed.
I have reviewed the ALJ’s Recommended Order. I have also reviewed Crescent Points’
Comments on the ALJ’s Recommended Order submitted on January 13, 2021, and the Director’s
Response to Crescent Points’ Comments on the ALJ’s Recommended Order submitted on
January 21, 2021.
CONSIDERATION OF CRESCENT POINT’S COMMENTS
Crescent Point’s comments contend that I (the Executive Director) should not adopt the
ALJ’s December 29, 2020, Recommended Order (“Pollution Control Facility”) addressing the
primary purpose of the surface casing and the interpretation of the treatment works provision in
the statute. Rather, Crescent Point avers that I should adopt the ALJ’s August 31, 2018,
Recommended Order in favor of certification (“Freestanding Pollution Control Property”).
Crescent Point suggests that the only reason for the change in the ALJ’s August 31, 2018,
decision in favor of certification appears to be that the factual and legal details were contained in
the Director’s September 3, 2020, Amended Denial rather than in the prior hearing and briefing
in the Special Adjudicative Proceeding.
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In response, the Director argues that: based on the information provided in the Director’s
initial September 15, 2016, denial, the subsequent briefing by the parties, the hearing in the
special adjudicatory proceeding, the ALJ’s remand and the Director’s September 3, 2020,
revised permit order (Amended Denial) denying the revised application, Crescent Point failed to
meet its burden of proof showing that the Director’s factual, technical, and scientific
determinations are clearly erroneous. Furthermore, the Director avers that the plain language of
the Pollution Control Act requiring that a pollution control facility9 have an associated treatment
works10 cannot be ignored.
Based on my review, the ALJ’s findings specifically address the circumstances following
the prior remand and the Director’s Amended Denial. Furthermore, the ALJ’s findings explain
that the Director has substantial discretion to interpret the statute as requiring both the disposal or
elimination of waste and the use of treatment works. For these reasons, I find that the points
raised in the parties’ comments were fully litigated in the special adjudicative proceeding and the
supplemental briefings, and were considered by the ALJ. For these reasons, I agree with ALJ
Jenkins’ findings, analysis, and conclusions.
ORDER
Based on my review of the adjudicatory record and pursuant to Utah Code § 19-1-301.5,
I hereby adopt ALJ Jenkins’ Findings of Fact, Conclusions of Law, and Recommended Order on
the Merits After Revised Permit Order in full. The Request for Agency Action filed by Crescent
Point on October 14, 2016, is hereby denied and the Director’s Amended Denial is affirmed.

9 19-2-102(6)(a) “Pollution Control Facility” means real property in the state, regardless of whether a purchaser purchases the real property voluntarily or to comply with a requirement of a governmental entity, if the primary
purpose of the real property is the prevention, control, or reduction of air pollution or water pollution by: (i) the disposal or elimination of, or redesign to eliminate, waste and the use of treatment works for industrial waste.
10 19-5-102(19) “Treatment Works” means a plant, disposal field, lagoon, dam, pumping station, incinerator, or other works used for the purpose of treating, stabilizing, or holding wastes.
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NOTICE OF RIGHT TO PETITION FOR JUDICIAL REVIEW
Pursuant to Utah Code § 19-1-301.5(16)(a), judicial review of this final order may be
sought in the Utah Court of Appeals in accordance with 63G-4-401, 63G-4-403, and 63G-4-405
by filing a petition within thirty (30) days after the date of this order.
DATED this 27th day of July, 2021.

____________________________________
Kimberly D. Shelley, Executive Director Utah Department of Environmental Quality

Signature:
Email:[e-mail]
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CERTIFICATE OF SERVICE
I hereby certify on this 27th day of July, 2021, a true and correct copy of the foregoing FINAL ORDER ADOPTING RECOMMENDED DECISION DISMISSING ADJUDICATIVE PROCEEDINGS was served via e-mail with the following recipients: 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]

Steven P. Young Holland & Hart, L.L.P. 222 South Main Street, Suite #2200 Salt Lake City, Utah 84101
[e-mail]
Amanda Smith
[e-mail]
Kimberlee McEwan Utah Attorney General’s Office 195 North 1950 West
P.O. Box 140873
Salt Lake City, Utah 84114-0873 [e-mail] Erica Gaddis, Director
Division of Water Quality
195 North 1950 West P.O. Box 144870 Salt Lake City, Utah 84114-4870 [e-mail]
/s/ Shane R. Bekkemellom
Shane R. Bekkemellom,
Administrative Legal Secretary