Plaintiff: Daniel R. Prentiss, Esq.
Defendant: Susan Forcier, Esq.; Stephen H. Burke, Esq.
MCGUIRL, MAGISTRATE J.
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).
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
"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
(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).
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).
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.
Motion for Reconsideration
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 ...