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Clambake Club of Newport v. Coit

Superior Court of Rhode Island

January 12, 2017


          For Plaintiff: R. Daniel Prentiss, Esq.

          For Defendant: Susan Forcier, Esq., Stephen H. Burke, Esq.


          MCGUIRL, J.

         Before this Court is the appeal of the Clambake Club of Newport (the Club or Appellant) from a final decision of the Department of Environmental Management (DEM) denying the Club's application for a Rhode Island Pollutant Discharge Elimination System permit (RIPDES).[1] DEM denied the permit on the basis that it was inappropriate to establish a mixing zone for the discharge of spent steel shot and limestone target fragments into the Sachuest Bay (the Bay) because the discharge constituted a release of solid waste into Class SA waters, which is strictly prohibited under DEM Water Quality Regulations (WQR). Jurisdiction is pursuant to G.L. 1956 §§ 42-35-1, et seq. of the Administrative Procedures Act (APA).


         Facts and Travel

         In 1895, a group of friends formed the Club on Easton's Point in Newport, Rhode Island. Since the Club's founding, patrons have enjoyed trapshooting on a range located on the eastern side of the Club, which extends over the Bay. Trapshooting is a sport whereby hunters shoot at targets, called "pigeons, " which are launched from a stationary spring trap. Pigeons are clay discs measuring four to five inches in diameter, which are made to shatter easily. At the Club, spring traps launch the pigeons over the Atlantic Ocean causing debris from the shattered targets and spent shot to fall into the Bay. Historically, the Club used lead shot and clay pigeons. However, around 2004, the Club switched to steel shot and biodegradable crushed limestone pigeons. Over time, the Club has evolved into a rod and game club with formal dining facilities and fishing docks. Nevertheless, until 2006, a portion of the Club's patrons continued to use the trapshooting range seasonally.

         In 2006, DEM determined that the Club's release of targets and shot constituted a point source discharge of pollutants to the Bay and issued a Notice of Intent to Enforce (NOI), in which it ordered the Club to immediately cease all trapshooting activities. (NOI, Aug. 25, 2006.) The NOI alleged violations of the Rhode Island Water Pollution Act for the Club's unauthorized discharge of spent shot and targets into the Bay. Id. The Club complied with the NOI and immediately brought an end to its trapshooting activities. (DEM Draft Permit, Aug. 25, 2008; Release of NOI, Aug. 11, 2009.) On March 28, 2007, the Club submitted an application to DEM for a RIPDES permit. (Club Appl., Mar. 28, 2007.) In the application, the Club requested permission to resume discharging trapshooting debris into the Bay. Id. The application specified that the Club only would use steel shot and biodegradable targets in its trapshooting operation. Id.

         As part of its application, DEM required that the Club undertake an environmental study to assess the impacts of the Club's prior discharges of lead shot and clay targets on the Bay. (DEM Draft Permit, Aug. 25, 2008.) In July 2008, DEM approved the Club's commissioning of Doctors Deborah French McCay and John W. King from Applied Sciences Associates (ASA) to lead the study. (ASA Report, Dec. 18, 2008.) The study was conducted almost two years after the Club ceased its trapshooting activities. Id. The study revealed the presence of steel and lead shot, as well as clay targets, within a ten meter area on the floor of the Bay located southeast of the shooting range. Id. Ultimately, the study found that no cleanup measures were necessary to remove the debris. Id. at 37-38. In an August 2009 letter to the Club, DEM adopted the ASA Report and likewise concluded that no cleanup measures were necessary to remove the lead shot and clay targets from the Bay. (Release of NOI, Aug. 11, 2009.)

         After reviewing the Club's application, DEM issued a draft permit pursuant to RIPDES Rules 34(b) and 37(d) that tentatively granted the application. (DEM Draft Permit, Aug. 25, 2008.) Although DEM's WQR prohibit solid refuse discharges into the Bay, [2] DEM "determined that it would be appropriate to consider a mixing zone for the deposition of steel shot and biodegradable targets into Sachuest Bay . . . provided that a mixing zone is established." Id. (emphasis added). The WQR define a mixing zone as a "limited area or volume in the immediate vicinity of a discharge where mixing occurs and the receiving surface water quality is not required to meet applicable standards or criteria . . ." Id. (quoting WQR 7).

         In the past, DEM only had established mixing zones in instances where liquid discharges—rather than solid discharges—entered receiving water. (Tr. 280, Sept. 10, 2014 (Tr. II).) DEM had never before considered establishing a mixing zone purely for solids that react with saltwater over time, such as steel shot and limestone targets. Id. Nevertheless, the draft permit tentatively authorized the Club's discharge of steel shot and biodegradable targets and required that the Club submit a Best Management Practices (BMP) Plan to minimize the discharge of pollutants and to provide for the storage and disposal of refuse. (DEM Draft Permit, Aug. 25, 2008.)

         Pursuant to RIPDES Rule 37(f), the draft permit announced a comment period running from August 27, 2008 through October 2, 2008, with a public hearing scheduled for October 1, 2008. At the scheduled hearing, DEM heard from Stephen Burke (Mr. Burke), who represented Friends of Easton's Point, Inc. (FEPI), a neighborhood organization concerned about the Club's trapshooting operation. (Tr. 9, Oct. 1, 2008 (Tr. I).) In his comments, Mr. Burke cited the RIPDES Rules, as well as the WQR, and questioned whether the establishment of a mixing zone was appropriate due to the fact that the Club was discharging solids, rather than liquids. Id. at 17-18.

         At the conclusion of the October 1, 2008 hearing, DEM extended the comment period for an additional fifteen days. Id. at 27:3-11. The DEM explicitly stated that both FEPI and the Club could utilize the extended comment period to submit additional written comments to DEM. Id. at 27:21-25.

         On October 16, 2008—the last day of the extended public comment period—FEPI submitted written comments and an engineering report from GZA GeoEnvironmental, Inc. (GZA Report) in support of its position that the RIPDES permit should be denied. (Decision and Order, June 10, 2014.) There is no evidence in the record to suggest that the Club responded to FEPI's submissions by requesting a further extension or reopening of the public comment period. On May 19, 2009, DEM issued a decision denying the Club's RIPDES permit application. (DEM Final Decision, May 19, 2009.)

         In its decision, DEM explained that it had reviewed information received during the public comment period and determined that the establishment of a mixing zone in the Bay was not appropriate because solid refuse (i.e. target and shot) "does not 'mix' with the receiving surface water as required by the definition of a mixing zone." Id. DEM concluded that because a mixing zone was not appropriate and the debris constitutes a solid waste—which the WQR specifically prohibits from entering the Bay—it could not issue the Club a RIPDES permit. Id.

         On June 15, 2009, the Club filed an administrative appeal of DEM's decision. As grounds for its appeal, the Club asserted that 1) DEM violated RIPDES regulations in processing the Club's application; 2) trapshooting debris does not qualify as solid refuse; and 3) the denial was not supported by legally competent evidence in the record.

         Prior to the hearing on the appeal, the Club filed a Motion to Clarify and Determine Scope of Administrative Hearing. (Motion to Clarify and Determine Scope of Administrative Hearing, dated July 26, 2013.) According to the Club, the public comment hearing did not constitute an evidentiary hearing on a contested case under the APA because the hearing officer did not take any sworn testimony or enter any exhibits into evidence. Id.[3] Consequently, the Club contended that it was entitled to a full evidentiary hearing during its appeal at which to present evidence and introduce expert testimony. Id. On August 27, 2013, the Hearing Officer issued an Order stating that the appellate hearing would be confined to a review of the already-established Administrative Record in this matter. (Order, dated Aug. 27, 2013.)

         The Adjudicatory Hearing on the appeal took place on September 10, 2013. At the hearing, the following individuals testified: Pierre Irving (Mr. Irving), the Club's President; Erick Beck (Mr. Beck), the supervisor of the RIPDES program in the Office of Water Resources; and Angelo Liberti (Mr. Liberti), the Chief of Surface Water Protection in the Office of Water Resources.

         At the Adjudicatory Hearing, Mr. Irving testified regarding the Club's history and its trapshooting rules and practices. (Tr. II at 173-76.) Mr. Beck testified regarding the role of the RIPDES program and explained that a mixing zone is established on a case-by-case basis, looking at specific site factors. Id. at 260. Mr. Beck also testified that several comments and documents submitted by both the proponents as well as the opponents of the trapshooting operation were helpful to DEM in reaching its final determination that a mixing zone was not appropriate. Id. at 248. However, Mr. Beck stated that "one of the more pertinent documents related to that decision was comments submitted by [FEPI], " particularly comments regarding the appropriateness of establishing a mixing zone for the discharge of solid waste. Id.

         Mr. Liberti testified that he had been involved in the decision to issue a tentative permit approval, as well as the eventual decision to deny the permit. Id. at 267. Mr. Liberti explained that in determining whether it should establish a mixing zone, DEM "considered the degree to which and . . . the rate at which [the steel shot and limestone targets] were dissolving and whether we felt that was appropriately categorized as mixing." Id. at 275. Mr. Liberti stated that in making its determination that the shot and targets would not break down quickly enough to qualify as mixing, DEM relied on a memorandum from the manufacturer of the targets to determine the rate at which the targets dissolved, as well as pictures from the site showing an accumulation of shot on the floor of the Bay. Id. at 276-77. Mr. Liberti further testified that "mixing is more or less instantaneous in all the guidance that's available" and that he was wary of "stretching the regulations" to allow for mixing zones to encompass solid discharges depending on their rate of decay. Id. at 280-81.

         Toward the end of the Adjudicatory Hearing, the Club made an offer of proof regarding the proposed testimony from its experts, Dr. McCay, one of the authors of the ASA report, and Matthew G.S. Horn, Ph.D. Id. at 156-60. The Hearing Officer permitted the offer of proof, but explained that he was not going to allow the Club to call its expert witnesses to testify about matters that the Club had not presented at the public hearing on October 1, 2008 or during the public comment period. Id. at 154-55. As to its offer of proof, counsel for the Club stated that Dr. Horn would have testified that steel shot disappears in saltwater within one year and clay pigeons dissolve within two to three years, and that Dr. McCay would have testified that the environmental impact of the Club's shooting activities was not measurable. Id. at 157-59.

         The DEM issued a final decision on June 10, 2014, upholding the denial of the Club's RIPDES permit application. (Decision and Order, June 10, 2004.) In that decision, the Hearing Officer found that there was an adequate basis in the administrative record to support the denial of the permit due to the comments submitted to DEM, coupled with the fact that the matter was one of first impression for DEM and that DEM was acting to protect the Bay. Id. The Hearing Officer determined that the Club's argument—that the Office of Water Resources cannot deny a permit after issuing a draft permit—failed under RIPDES Rule 46(a). Id. The Hearing Officer further determined that DEM had not acted arbitrarily or capriciously as DEM had debated the issue, followed the procedural requirements, extended the comment period, and considered the comments in making its final decision. Id. Finally, the Hearing Officer stated that under Rhode Island law, discharge of solid waste into Rhode Island waters is strictly prohibited, and DEM was not authorized to issue permits to discharge solid waste into SA Class state waters. Id. In rendering his decision, the Hearing Officer specifically found credible the testimony of Mr. Beck and Mr. Liberti. Id.

         Following the final decision, on June 20, 2014, the Club timely filed an appeal to this Court.


         Standard of Review

         This Court's review of DEM's decision is governed by the APA. See Vito v. Dep't of Envtl. Mgmt., 589 A.2d 809, 810 (R.I. 1991). Section 42-35-15 provides, in pertinent part:

"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error or law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Sec. 42-35-15(g).

         When reviewing a decision under the APA, this Court may not substitute its judgment for that of the agency on questions of fact. Johnston Ambulatory Surgical Assocs., Ltd. v. Nolan, 755 A.2d 799, 805 (R.I. 2000). Accordingly, the Court is limited to "an examination of the certified record to determine if there is any legally competent evidence therein to support the agency's decision." Barrington Sch. Comm. v. R.I. State Labor Relations Bd., 608 A.2d 1126, 1138 (R.I. 1992). Legally competent or substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means [an] amount more than a scintilla but less than a preponderance." Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981).

         Even though this Court reviews questions of law de novo, "it is also true that [the Court] give[s] deference to an agency's interpretation of an ambiguous statute that it has been charged with administering and enforcing, provided that the agency's construction is neither clearly erroneous nor unauthorized." Town of Burrillville v. Pascoag Apartment Assocs., 950 A.2d 435, 445 (R.I. 2008) (internal citation and quotation marks omitted). Thus, while not controlling, an agency's interpretation of its own rules or regulations is entitled to substantial deference. Id.; see also State v. Cluley, 808 A.2d 1098, 1104 (R.I. 2002) (finding that deference to an agency's interpretation of its own regulations required the court "to presume the validity and reasonableness of that construction until and unless the party challenging its interpretation proved otherwise").

         Further, "where the agency's specialized knowledge is involved . . . the court should grant broader deference and uphold the agency's conclusion if the conclusion is rationally based." R.I. Higher Educ. Assistance Auth. v. Sec'y, U.S. Dep't of Educ., 929 F.2d 844, 857 (1st Cir. 1991) (quoting Bldg. & Constr. Trades Dep't, AFL-CIO v. Brock, 838 F.2d 1258, 1266 (D.C. Cir. 1988)). Such deference is accorded even if an alternative, equally reasonable interpretation exists. Pawtucket Power Assocs. Ltd. P'ship v. City of Pawtucket, 622 A.2d 452, 456-57 (R.I. 1993).

         However, a court "will not apply a statute in a manner that will defeat its underlying purpose." Arnold v. R.I. Dep't of Labor & Training Bd. of Review, 822 A.2d 164, 169 (R.I. 2003). Ultimately, a court's deference to an agency's interpretation depends on the '"persuasiveness of the interpretation, given all the attendant circumstances."' Town of Burrillville, 950 A.2d at 446 (quoting Unistrut Corp. v. State Dep't of Labor & Training, 922 A.2d 93, 101 (R.I. 2007)).



         On appeal, the Club asserts that DEM's decision was made upon unlawful procedure, clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, and arbitrary and capricious. Specifically, the Club contends that 1) it was prejudiced by DEM's unlawful procedure; 2) spent steel shot and targets do not qualify as solid waste; 3) there is no evidence in the record to support denial of the Club's application; and 4) the Hearing Officer improperly excluded the testimony of its two expert witnesses at the Adjudicatory Hearing.


         Procedural Challenges

         The Club avers that DEM failed to follow proper procedure under the RIPDES Rules when it issued a tentative draft permit and then ultimately decided—after a public hearing and comment period—to deny the permit. Specifically, the Club argues that (1) there is no authority for DEM to deny an RIPDES permit application after issuing a draft permit, and that, even if such authority exists, DEM must (a) give the Club notification of its intention to deny the permit pursuant to RIPDES Rule 37(c); and (b) must follow the procedures set forth in RIPDES Rule 45(a) when substantial new information is presented during the public comment period; (2) the Hearing Officer failed to separately address and rule upon each of the Club's findings of fact in violation of § 42-35-12; (3) DEM engaged in ex parte communications in making its decision in violation of § 42-35-13; and (4) DEM improperly excluded the Club's expert witnesses at the Adjudicatory Hearing.


         Draft Permits

         The Club contends that the "overall flow" of the RIPDES Rules suggests that the Rules do not contemplate a scenario in which DEM may deny an application for an RIPDES permit after issuing a draft permit. Alternatively, the Club contends that even if the Rules allow DEM to deny a permit after first issuing a draft permit, DEM (a) is required to provide notice of its intent to deny pursuant to RIPDES Rule 37(c); and (b) is required to follow the procedures outlined in RIPDES Rule 45(a) rather than RIPDES Rule 46(a) when new information is presented to DEM during the public comment period that raises substantial new questions concerning a permit.

         In response, DEM maintains that under the Club's reading of the RIPDES Rules, DEM would be subjected to a "circular maze of permit review . . . [and] would forever be issuing new draft permits while not being able to make a decision to deny one." DEM further alleges that once it has written a draft permit and opened a public comment period pursuant to RIPDES Rule 37, it issues a final decision on the permit pursuant to RIPDES Rule 46, and that it need not provide any additional notice to do so.

         Although this Court gives deference to an agency's interpretation of its own regulations, Cluley, 808 A.2d at 1104 (presuming "validity and reasonableness of [an agency's] construction until and unless the party challenging its interpretation proved otherwise"), when the agency's interpretation is challenged, "[t]he construction of a regulation is a question of law to be determined by the court." Murphy v. Zoning Bd. of Review of S. Kingstown, 959 A.2d 535, 541 (R.I. 2008) (quoting 2 Am. Jur. 2d. Administrative Law § 245 at 221 (2004)). In making any such determination, "[t]he principles or rules of statutory construction apply to administrative regulations." Id.

         The ultimate goal of the Court in construing a statute "is to give effect to the purpose of the act as intended by the Legislature." McAninch v. State of R.I. Dep't of Labor & Training, 64 A.3d 84, 86 (R.I. 2013) (internal citations and quotation marks omitted). In determining and effectuating intent, the Court must

"attribut[e] to the enactment the most consistent meaning. When the language of the statute is clear and unambiguous, it is [the Court's] responsibility to give the words of the enactment their plain and ordinary meaning. The plain meaning approach, however, is not the equivalent of myopic literalism, and it is entirely proper for [the Court] to look to the sense and meaning fairly deducible from the context. Therefore, [the Court] must consider the entire statute as a whole; individual sections must be considered in the context of the entire statutory scheme, not as if each section were independent of all other sections. Finally, under no circumstances will this Court construe a statute to reach an absurd result." Mendes v. Factor, 41 A.3d 994, 1002 (R.I. 2012) (internal citations and quotations omitted).

         Under RIPDES Rules, there are several procedural stages in the permit issuance process. See RIPDES Rule 34. The first stage involves the submission of an application "in proper form." RIPDES Rule 34(a). Thereafter, "[t]he Department prepares a tentative decision to issue or deny a draft RIPDES permit. This decision shall be made available for public comment." RIPDES Rule 34(b); see also RIPDES Rule 37(b) ("Once an application is complete the ...

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