Plaintiff: R. Daniel Prentiss, Esq.
Defendant: Susan Forcier, Esq., Stephen H. Burke, Esq.
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). 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).
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.
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.
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.)
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,  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).
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.)
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
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.
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.)
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
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.
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. 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.)
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.
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.
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.
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.
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.
the final decision, on June 20, 2014, the Club timely filed
an appeal to this Court.
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
"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
"(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).
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.
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").
"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).
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)).
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.
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.
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
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.
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.
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
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 ...