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The Clambake Club of Newport v. Coit

Superior Court of Rhode Island

August 22, 2019

THE CLAMBAKE CLUB OF NEWPORT
v.
JANET COIT, in her capacity as DIRECTOR of the DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

          For Plaintiff: Daniel R. Prentiss, Esq.

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

          DECISION

          MCGUIRL, MAGISTRATE J.

         The Clambake Club of Newport (the Club) asks this Court to reconsider a narrow portion of its decision filed on January 12, 2017. Specifically, the Club asks this Court to reconsider its ruling which held that permissive language within the Department of Environmental Management (DEM) rules did not require DEM to reopen or extend the public comment period if substantial new questions arose during the original public comment period prior to denial of a draft permit. The issue came before the Court on appeal by the Club from a final decision of the DEM, denying the Club's application for a Rhode Island Pollutant Discharge Elimination System permit (RIPDES). Jurisdiction is pursuant to G.L. 1956 § 42-35-15 and Super. R. Civ. P. 60(b)(6).

         I Agency Appeal

         Previously before this Court, the Club argued that DEM violated RIPDES Rule 45(a) in its proceedings on the Club's RIPDES permit application, because it failed to reopen the comment period pursuant to subsection (3) of the rule. In addition, the Club argued that DEM was erroneous in its belief that it could essentially bypass RIPDES Rule 45(a) due to its permissive language and summarily deny a draft permit based upon substantial new questions presented. Moreover, the Club contended that DEM was prescribed limited discretion in applying only one or more of three enumerated actions within RIPDES Rule 45(a) if substantial new questions were presented during the public comment period yet summarily denied its permit without additional opportunity for the Club to respond to newly submitted evidence. The rule in question before this Court was RIPDES Rule 45(a), which provides in pertinent part:

"If any data, information or arguments submitted during the public comment period . . . appear to raise substantial new questions concerning a permit, the Department may take one or more of the following actions:
(1) Prepare a new draft permit appropriately modified under Rule 36;
(2) Prepare a revised statement of basis under Rule 38, a fact sheet or revised fact sheet under Rule 39 and reopen the comment period; or
(3) Reopen or extend the comment period under Rule 41 to give interested persons an opportunity to comment on the information or arguments submitted." RIPDES Rule 45(a).

         After extensive briefing, the Court held that the term "may" is a discretionary provision, which indicated that DEM was not obligated to reopen the comment period prior to denial as posited by the Club. RIPDES Rule 45(a) states that DEM "may take one or more of the following actions[, ]" one of which is the reopening of the comment period if it determines that substantial new questions have been raised. However, the Court found no language indicating mandatory imposition of one of the three enumerated actions prescribed in RIPDES Rule 45(a).

         Moreover, the Court cited the General Assembly's contraposition of the term "shall" in the subsequent section of the same rule which evidenced the General Assembly's intent to allow DEM to choose how it should handle substantial new questions that may arise. See RIPDES Rule 45(b) (stating "[c]omments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening" and the accompanying public notice "shall define the scope of the reopening"). The Court concluded that in light of the fact that RIPDES Rule 45(a) is discretionary rather than mandatory, DEM did not err in deciding not to reopen the public comment period, even if, as the Club contends, substantial new questions were raised during the regular comment period.

         II Motion for Reconsideration

         Before this Court, on the Motion for Reconsideration, the Club now argues that the Court "misperceived" the Club's argument regarding RIPDES Rule 45(a). (Mot. Recons. at 2). Conversely, DEM objects to the motion before the Court, arguing that Superior Court Rules of Civil Procedure 60 is not the appropriate avenue to reargue issues already presented to the Court absent mistake, inadvertence, newly discovered evidence or other reasons as set forth in Rule 60. The Club filed its Motion for Reconsideration ...


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