June 8, 2018



                                                                         Supreme Court

                                                                         No. 2016-157-Appeal.
                                                                         (PC 12-2481)


         Janet L. Coit, in her capacity as Director of   :
             the Department of Environmental
                     Management, et al.

                              v.                         :

               Vincent Coccoli, d/b/a Millville          :
                   Associates, Inc., et al.




                        NOTICE: This opinion is subject to formal revision before
                        publication in the Rhode Island Reporter. Readers are requested to
                        notify the Opinion Analyst, Supreme Court of Rhode Island,
                        250 Benefit Street, Providence, Rhode Island 02903, at Telephone
                        222-3258 of any typographical or other formal errors in order that
                        corrections may be made before the opinion is published.
                                                                   Supreme Court

                                                                   No. 2016-157-Appeal.
                                                                   (PC 12-2481)


Janet L. Coit, in her capacity as Director of   :
    the Department of Environmental
            Management, et al.

                     v.                         :

      Vincent Coccoli, d/b/a Millville          :
          Associates, Inc., et al.


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Goldberg, for the Court.             This case came before the Supreme Court on

February 7, 2018, pursuant to an order directing the parties to appear and show cause why the

issues raised on appeal should not be summarily decided. The plaintiffs, the Rhode Island

Department of Environmental Management (DEM) and the State of Rhode Island, appeal from

the trial justice’s decision granting summary judgment in favor of the defendants, Vincent

Coccoli, doing business as Millville Associates, Inc. (Coccoli or Millville), and Patrick Conley,

as Trustee of the Pearl Trust (Conley or the Pearl Trust) (collectively defendants). The DEM

also appeals from the denial of its motion to file a second amended complaint. The DEM argues

that the hearing justice erred as a matter of law when she concluded that an administrative

penalty could not be enforced through an injunctive proceeding. After hearing the arguments of

counsel and examining the memoranda submitted by the parties, we are of the opinion that cause

has not been shown and that this case should be decided without further briefing or argument.

We dismiss the appeal because it is not properly before this Court.



                                                -1-
                                       Facts and Travel

        Millville and the Pearl Trust were the owners of real property located on Pearl Avenue in

North Providence, Rhode Island (the Pearl Avenue property).1 On October 25, 2002, DEM

issued a letter of responsibility addressed to the Pearl Trust, requesting that the Pearl Trust

investigate the release of hazardous materials in the form of chlorinated volatile organic

compounds on the Pearl Avenue property.           Thereafter, the contamination was properly

remediated.     Subsequently, the property abutting the Pearl Avenue property, located at

18 Thelma Avenue (the abutting property), was reported to have excessive chlorinated volatile

organic compounds detected in the groundwater. The DEM concluded that the Pearl Avenue

property was the probable source of the contamination, and it notified Millville that it was

responsible for the remediation of the contamination.

        On October 10, 2006, DEM issued an interim letter of compliance to Millville,

acknowledging that the soils on the Pearl Avenue property had been brought into compliance,

but that Millville remained responsible for the remediation of the abutting property. There was

no action after this notification.

        On December 22, 2006, DEM issued a letter of noncompliance to Millville, for failure to

address the contamination on the abutting property.      The letter of noncompliance required

Millville to submit a remedial action work plan to DEM by February 1, 2007.             Millville

submitted a remedial action work plan regarding the abutting property, and DEM issued an order

of approval that required Millville to initiate remediation on or before February 28, 2007. There

1
  The Pearl Trust owned the Pearl Avenue property from 2002 to 2005. Later, Conley, through
the Pearl Trust, transferred the Pearl Avenue property to Sedona Associates, LLC (Sedona).
Sedona was operated by Conley. In 2005, Sedona transferred the Pearl Avenue property to
Coccoli, who was doing business as Millville Associates. Coccoli thereafter transferred the
property to Kevin O’Sullivan in 2006. Subsequently, Conley reacquired the property.


                                              -2-
was no action to commence remedial efforts by the required deadline. Thereafter, DEM issued a

notice of intent to enforce addressed to Millville and the Pearl Trust for the failure to remediate

the abutting property. The notice also required Millville and the Pearl Trust to begin remediation

on or before July 15, 2007.

       Several years later, in 2010, DEM issued a notice of violation (NOV) against defendants

for failure to comply with the remediation order for the abutting property.2 The NOV ordered

defendants to begin installation and operation of the remedial plan within thirty days of receipt of

the NOV, and assessed a $45,000 administrative penalty.             The notice further informed

defendants of their right to request an administrative hearing within twenty days of the notice.

The defendants neither responded to the NOV nor requested an administrative hearing.

       Time passed. In 2012, DEM commenced the present action against defendants, seeking

injunctive relief to require defendants to remediate.3 The DEM also sought enforcement of the

administrative penalty, arguing that its authority to do so arose from G.L. 1956 § 42-17.1-

2(21)(v).4

       On July 29, 2013, Coccoli filed a motion to dismiss and contended that he was not an

individual owner of the Pearl Avenue property and that he did not receive proper notice of the

NOV. Similarly, Conley moved for summary judgment, asserting that the Pearl Trust was

extinguished at the time the NOV was issued and that he could not be held personally liable for

2
 The notice of violation was addressed to Vincent Coccoli, d/b/a Millville Associates, Inc.,
Kevin O’Sullivan, and the Pearl Trust.
3
  The DEM commenced an action naming Vincent Coccoli, d/b/a Millville Associates, Inc.;
Patrick T. Conley, individually and as Trustee of the Pearl Trust; and Kevin O’Sullivan. The
action against Kevin O’Sullivan was dismissed following a stipulation of dismissal between the
parties.
4
  On October 20, 2012, DEM amended its complaint to assert that the requirements under the
final order and administrative penalty could be enforced through injunctive relief proceedings.
                                               -3-
the inaction of the Pearl Trust.       The DEM filed a cross-motion for summary judgment,

contending that, as a matter of law, it was entitled to enforce the NOV, which it contended

became enforceable when defendants failed to timely request an administrative hearing.

          More time passed, as did the contamination. In 2015, the levels of contamination located

on the abutting property had naturally deteriorated to acceptable levels. In turn, DEM released

defendants from the remediation requirement, but continued to seek enforcement of the $45,000

administrative penalty. In response, defendants filed a joint motion for summary judgment,

arguing that the release of the remediation requirement also released them from the

administrative penalty. The DEM objected to the motion and filed a cross-motion for summary

judgment.

          On December 11, 2015, a hearing on the parties’ respective motions was held. The

hearing justice concluded that the partial release by DEM did not operate to release or discharge

defendants from their obligations under the NOV, but that the question of whether DEM could

enforce     the   administrative   penalty through    an   action   for   injunctive   relief   under

§ 42-17.1-2(21)(v) remained. The DEM then sought to amend its complaint for a second time, to

include an assertion that DEM could enforce an administrative penalty through injunctive relief

under both §§ 42-17.1-2(21)(vi) and 42-17.6-4(c).5 On February 17, 2016, fourteen years after



5
  While DEM’s 2012 amended complaint cited to § 42-17.1-2(21)(v), in 2013, chapter 17.1 of
title 42 of the general laws was amended and that subsection was renumbered to
§ 42-17.1-2(21)(vi). Section 42-17.1-2(21)(vi) states:

                  “Whenever a compliance order has become effective, whether
                  automatically where no hearing has been requested, where an
                  immediate compliance order has been issued, or upon decision
                  following a hearing, the director may institute injunction
                  proceedings in the superior court of the state for enforcement of
                  the compliance order and for appropriate temporary relief, and in
                  that proceeding, the correctness of a compliance order shall be
                                                -4-
DEM first became involved in the Pearl Avenue property, the trial justice issued a bench

decision finding that DEM could not enforce an administrative penalty in the context of an action

for injunctive relief. The trial justice granted defendants’ motion for summary judgment and

denied DEM’s cross-motion for summary judgment and motion to file a second amended

complaint, on the ground that the agency could not enforce an administrative penalty through an

injunctive proceeding. The DEM filed a timely notice of appeal.

       This appeal is not properly before this Court. The DEM filed a complaint with the

Superior Court seeking injunctive relief to enforce a final compliance order, pursuant to

§ 42-17.1-2(21). Section 42-17.1-2(21) states that DEM has the authority:

               “[t]o give notice of an alleged violation of law to the person
               responsible therefor whenever the director determines that there
               are reasonable grounds to believe that there is a violation of any
               provision of law within his or her jurisdiction or of any rule or
               regulation adopted pursuant to authority granted to him or her,
               unless other notice and hearing procedure is specifically provided
               by that law. Nothing in this chapter shall limit the authority of the
               attorney general to prosecute offenders as required by law.”

       However, in accordance with chapter 17.1 of title 42 of the general laws, the agency can

seek appellate review only by way of a petition for writ of certiorari. Specifically, § 42-17.1-

2(21)(vii) provides that:


               presumed and the person attacking the order shall bear the burden
               of proving error in the compliance order, except that the director
               shall bear the burden of proving in the proceeding the correctness
               of an immediate compliance order. The remedy provided for in
               this section shall be cumulative and not exclusive and shall be in
               addition to remedies relating to the removal or abatement of
               nuisances or any other remedies provided by law[.]”

Additionally, § 42-17.6-4(c) provides:

               “If a person waives his or her right to an adjudicatory hearing, the
               proposed administrative penalty shall be final immediately upon
               the waiver.”
                                               -5-
                “Any party aggrieved by a final judgment of the superior court
                may, within thirty (30) days from the date of entry of such
                judgment, petition the supreme court for a writ of certiorari to
                review any questions of law. The petition shall set forth the errors
                claimed. Upon the filing of the petition with the clerk of the
                supreme court, the supreme court may, if it sees fit, issue its writ of
                certiorari.” (Emphasis added.)

Based on our review of this statute and the provisions of chapter 17.1 of title 42, we deem

§ 42-17.1-2(21)(vii) to be clear and unambiguous and therefore it must be applied in accordance

with its plain and ordinary meaning.         State v. Diamante, 83 A.3d 546, 550 (R.I. 2014).

Accordingly, an appeal from a final judgment of the Superior Court brought under

§ 42-17.1-2(21) must proceed by way of a petition for a writ of certiorari. The DEM’s failure to

comply with this statute is fatal to this appeal.

                                             Conclusion

        For the reasons set forth herein, we dismiss the appeal. The papers in this case shall be

remanded to the Superior Court.




                                                    -6-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Janet L. Coit, in her capacity as Director of the
Title of Case                        Department of Environmental Management, et al. v.
                                     Vincent Coccoli, d/b/a Millville Associates, Inc., et al.
                                     No. 2016-157-Appeal.
Case Number
                                     (PC 12-2481)
Date Opinion Filed                   June 8, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Patricia A. Hurst
                                     For Plaintiffs:

                                     Gregory S. Schultz, Esq.
                                     Christina Anne Hoefsmit, Esq.
Attorney(s) on Appeal
                                     For Defendants:

                                     Vincent Coccoli, Pro Se
                                     Patrick T. Conley, Esq.




SU-CMS-02A (revised June 2016)
