N.C. Dep't of Envtl. Quality v. TRK Dev., LLC , 259 N.C. App. 597 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-882
Filed: 15 May 2018
Cabarrus County, No. 16 CVS 2281
N.C. DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WASTE
MANAGEMENT, Petitioner,
v.
TRK DEVELOPMENT, LLC, Respondent.
Appeal by petitioner from order entered 26 January 2017 by Judge Julia Lynn
Gullett in Cabarrus County Superior Court. Heard in the Court of Appeals 21 March
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General T. Hill Davis,
III, for petitioner.
Hartsell & Williams, PA, by Andrew T. Cornelius and Austin “Dutch” Entwistle
III, for respondent.
DAVIS, Judge.
This case requires us to determine whether the North Carolina Department of
Environmental Quality (“DEQ”) was properly estopped from enforcing the Solid
Waste Management Act against a developer based on the developer’s prior receipt of
an erosion and sedimentation control permit from DEQ. Because we conclude that
both the administrative law judge and the trial court erred in their application of the
equitable estoppel doctrine in favor of the developer on these facts, we reverse.
N.C. DEP’T OF ENVTL. QUALITY V. TRK DEV., LLC
Opinion of the Court
Factual and Procedural Background
At all times relevant to this appeal, TRK Development, LLC (“TRK”) owned
three adjoining parcels of land in Concord, North Carolina. In April 2014, TRK
sought to make a structural addition to a warehouse located on the first parcel. The
planned addition required that a substantial amount of soil be excavated from the
second parcel. Prior to beginning construction, TRK hired surveyors, an architect,
and a civil engineer to prepare an erosion and sedimentation control plan to be
submitted to DEQ for approval.1
On 18 June 2014, Dale Fink, the civil engineer hired by TRK, submitted the
completed erosion and sedimentation control plan to Tamara Eplin, an assistant
regional engineer in the Land Quality Section of DEQ.2 Included in the plans were
topographic maps containing the results of soil boring testing conducted by TRK at
the proposed construction site. The borings indicated the presence of trash in
multiple locations beneath the surface of the soil TRK intended to excavate.
1 At the time the erosion and sedimentation control plan was submitted, DEQ was known by
its former name, the Department of Environment and Natural Resources.
2 DEQ is comprised of eleven divisions, which are in turn subdivided into sections. The
departments within DEQ relevant to this appeal are: (1) the Division of Energy, Land, and Mining
Resources, which contains the Land Quality Section; and (2) the Division of Waste Management, which
encompasses the Solid Waste Section.
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The Land Quality Section approved TRK’s erosion and sedimentation control
plan by issuing a Letter of Approval and Certificate of Plan Approval on 26 June
2014. The Letter of Approval contained the following language:
If, following the commencement of this project, the erosion
and sedimentation control plan is inadequate to meet the
requirements of the Sedimentation Pollution Control Act of
1973 . . . this office may require revisions to the plan and
implementation of the revisions to insure compliance with
the Act.
Acceptance and approval of this plan is conditioned upon
your compliance with Federal and State water quality
laws, regulations, and rules. In addition, local city or
county ordinances or rules may also apply to this land-
disturbing activity. This approval does not supersede any
other permit or approval.
(Emphasis added.)
On 18 August 2014, Fink submitted an amended erosion and sedimentation
control plan to Eplin that was specifically for the “spoils area” where excavated soil
would be placed. DEQ approved TRK’s second erosion and sedimentation control plan
on 26 August 2014 by issuing another Letter of Approval and Certificate of Plan
Approval. The 26 August Letter of Approval contained the same above-quoted
language as the 26 June Letter of Approval.
After receiving these approvals, TRK began construction on the warehouse
addition in September 2014. On 18 September 2014, an inspector with the Land
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Quality Section conducted an inspection of the construction site and determined that
it was in compliance with the Sedimentation Pollution Control Act of 1973.3
On 23 November 2014, DEQ received an anonymous letter stating, in pertinent
part, as follows:
In the area of Ramdin Court and Cascade Drive in Concord,
NC there seems to be some activity taking place that
basically is leaving the area looking like a landfill. . . .
There is some sort of grading taking place that is
uncovering what appears to be a massive area of buried
trash and garbage. There is all kind of trash and also rank
odors. It has been spread across a large area near a creek
and near power lines. . . . We would appreciate it if you can
help look into this matter. If this is not a matter you are
responsible for, please forward it [to] the appropriate
department. You are the only place I could think of that
handles this sort of thing.
In response to the letter, Teresa Bradford, an environmental senior specialist
working in the Solid Waste Section of DEQ’s Division of Waste Management,
conducted a site inspection of the construction area on 3 December 2014. During the
inspection, she observed “waste being moved from one area to the next[.]” Bradford
spoke with TRK’s main contractor, Brandon Cornelius, who told her that TRK
possessed the necessary permits for its construction project. Cornelius showed
Bradford one of the Certificates of Plan Approval that TRK had received from the
Land Quality Section of DEQ. Bradford explained that this approval had been given
3 N.C. Gen. Stat. § 113A-50, et seq. (2017).
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“for erosion and sediment control measures only” and not “to dispose [of] solid waste
on the [third] parcel.” While at the site, Bradford also spoke by phone with Rishi
Kapadia, a member manager of TRK. She advised Kapadia that TRK’s permit “was
approval for erosion control measures only” and that she “wasn’t aware of any solid
waste permit that would allow for the disposal.”
On the following day, Bradford informed Kapadia that TRK had not been
issued a permit allowing it to dispose of solid waste on its property. She further told
Kapadia that — for this reason — the waste that had already been excavated would
have to be taken to a permitted landfill and that, similarly, “any waste continuing to
be removed from the original location would have to be disposed of at [a permitted]
landfill.” Kapadia responded that doing so would cost “millions of dollars.”
Bradford conducted a second site inspection on 16 December 2014 and saw that
waste was continuing to be disposed of on the third parcel. She further observed that
the waste area had increased in size since her first inspection from one acre to
approximately 1.7 acres and from ten feet in height to between twenty and thirty feet.
On 29 December 2014, DEQ issued a Notice of Violation to TRK, which stated
that TRK was “operating a non-conforming solid waste disposal site/open dump” in
violation of four separate North Carolina Administrative Code regulations related to
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the disposal of solid waste.4 The Notice of Violation also provided that TRK had sixty
days in which to come into compliance with these regulations by taking certain
specified actions, including that it refrain from disposing of any additional waste on
TRK’s third parcel and that it remove “all solid waste from the site including any that
may be buried and properly dispose of it in a facility permitted by the Division of
Waste Management.”
DEQ received no response from TRK, and Bradford conducted another site
inspection on 29 January 2015. During this inspection, she “observed that the [waste]
area had increased in height and also that there was an additional area to the east of
the disposal area that had been excavated and waste was being placed into the
excavated area.”
Following this inspection, a meeting was scheduled at the DEQ Mooresville
Regional Office between Kapadia, Bradford, and Charles Gerstell, another
environmental senior specialist in the Solid Waste Section. At the meeting, Kapadia
4 The specific regulations listed in the Notice of Violation as having been violated by TRK were
15A N.C.A.C. 13B .0106(a) and (b), and 15A N.C.A.C. 13B .0201(a) and (b). Rule 13B .0106(a) provides
that “[a] solid waste generator shall be responsible for the satisfactory storage, collection and disposal
of solid waste.” 15A N.C.A.C. 13B .0106(a) (2017). Rule 13B .0106(b) states that “[t]he solid waste
generator shall ensure that his waste is disposed of at a site or facility which is permitted to receive
the waste.” 15A N.C.A.C. 13B .0106(b). Rule 13B .0201(a) provides that “[n]o person shall treat,
process, store, or dispose of solid waste . . . except at a solid waste management facility permitted by
the Division for such activity[.]” 15A N.C.A.C. 13B .0201(a) (2017). Rule 13B .0201(b) states that “[n]o
person shall cause, suffer, allow, or permit the treatment, storage, or processing of solid waste upon
any real or personal property owned, operated, leased, or in any way controlled by that person without
first obtaining a permit for a solid waste management facility from the Division authorizing such
activity[.]” 15A N.C.A.C. 13B .0201(b). Each of these regulations was promulgated pursuant to North
Carolina’s Solid Waste Management Act.
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reiterated his view that TRK had already obtained the necessary permits for its
construction project. Bradford informed Kapadia that “the only solution was removal
of the waste, but [that] the section would work with him on technical assistance for
removal and disposal options and . . . a time line for a cleanup for the site.”
On 27 February 2015, TRK sent a letter to DEQ responding to the Notice of
Violation. The letter stated, in pertinent part, as follows:
In response to your notice sent December 29, 2014, TRK
Development respectfully disagrees with [DEQ’s]
assessment that site work . . . involves the excavation,
transportation and/or disposal of solid waste. We believe
that that material being transported consists of mostly
soil/dirt and is in line with the definition of spoils as stated
in the approved plans and Certificate of Plan Approval
issued by [DEQ]. . . .
We propose that we will leave the spoils in place as is, seed
and mulch the area and add additional security measures
such as a gate to secure the site.
DEQ issued a Notice of Continuing Violation to TRK on 17 March 2015 along
with an accompanying letter informing TRK that it had thirty days in which to come
into compliance with the applicable regulations. After the thirty-day deadline passed,
Bradford returned to the site on 12 May 2015 with four other DEQ employees to
conduct soil sampling. The laboratory results of this sampling indicated the presence
of both semi-volatile organic compounds and metals (including arsenic and
aluminum) in the soil at levels hazardous to human health.
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On 23 July 2015, DEQ issued a Compliance Order With Administrative
Penalty to TRK “because of certain violations of the North Carolina Solid Waste
Management Act (N.C. General Statute 130A, Article 9) and of the North Carolina
Solid Waste Management Rules (15A N.C. Administrative Code 13B) which
implements [sic] the Act.” The compliance order alleged violations of the same four
regulations that had been listed in the Notice of Violation and Notice of Continuing
Violation previously issued to TRK by DEQ. It also assessed an administrative
penalty of $14,287.13.
TRK filed a petition for a contested case hearing with the Office of
Administrative Hearings on 8 September 2015. Following a hearing, Administrative
Law Judge (“ALJ”) David F. Sutton issued a final decision on 11 July 2016 that
“overruled and reversed” the 23 July 2015 compliance order issued by DEQ. In his
decision, the ALJ determined, inter alia, that TRK was, in fact, a solid waste
generator and did not come within the exception set out in the Solid Waste
Management Act for “the management of solid waste that is generated by an
individual . . . on the individual’s property and is disposed of on the individual’s
property.” However, the ALJ further concluded that DEQ was estopped from issuing
a compliance order against TRK based on its prior issuance of approvals for the
erosion and sedimentation control plans submitted by TRK.
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Opinion of the Court
On 8 August 2016, DEQ filed a petition for judicial review of the ALJ’s final
decision in Cabarrus County Superior Court. The Honorable Julia Lynn Gullett
entered an order on 26 January 2017 affirming the ALJ’s final decision. DEQ filed a
notice of appeal to this Court on 23 February 2017.
Analysis
Judicial review of an administrative decision is governed by Chapter 150B of
the North Carolina General Statutes, which provides, in pertinent part, as follows:
(b) The Court reviewing a final decision may affirm the
decision or remand the case for further proceedings. It may
also reverse or modify the decision if the substantial rights
of the petitioners may have been prejudiced because the
findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of
the agency or administrative law judge;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible
under G.S. 150B-29(a), 150B-30, or 150B-31 in view
of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
N.C. Gen. Stat. § 150B-51(b) (2017).
It is well settled that “in cases appealed from administrative tribunals,
questions of law receive de novo review, whereas fact-intensive issues such as
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sufficiency of the evidence to support an agency’s decision are reviewed under the
whole-record test.” N.C. Dep’t of Env’t & Nat. Res. v. Carroll, 358 N.C. 649, 659, 599
S.E.2d 888, 894 (2004) (citation, quotation marks, and brackets omitted). “The whole
record test requires the reviewing court to examine all competent evidence (the whole
record) in order to determine whether the agency decision is supported by substantial
evidence.” Fehrenbacher v. City of Durham, 239 N.C. App. 141, 146, 768 S.E.2d 186,
191 (2015) (citation and quotation marks omitted).
Our Supreme Court has stated that “where only one inference can reasonably
be drawn from undisputed facts, the question of estoppel is one of law for the court to
determine.” Hawkins v. M & J Fin. Corp., 238 N.C. 174, 185, 77 S.E.2d 669, 677
(1953) (citation omitted). However, where “the evidence bearing on the issue of
estoppel [is] conflicting and susceptible of diverse inferences[,]” the issue is a mixed
question of fact and law. Bowling v. Combs, 60 N.C. App. 234, 241, 298 S.E.2d 754,
758 (citation omitted), disc. review denied, 307 N.C. 696, 301 S.E.2d 389 (1983).
On appeal, DEQ contends that the trial court erred in affirming the final
decision of the ALJ for two reasons: (1) the doctrine of equitable estoppel cannot
operate so as to impair the State’s exercise of its governmental powers; and (2) the
elements of equitable estoppel were not met in this case. We agree with both of DEQ’s
arguments.
I. Equitable Estoppel as a Limit on the Exercise of Governmental Powers
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DEQ first contends that the trial court erred in affirming the final decision of
the ALJ because a State agency’s ability to exercise its governmental powers cannot
be impaired by the operation of estoppel. DEQ asserts that its duty to enforce the
Solid Waste Management Act constitutes a police power as to which ordinary
principles of estoppel do not apply.
It is well established that an administrative agency of the State “is not subject
to an estoppel to the same extent as a private individual or a private corporation.”
Meachan v. Montgomery Cty. Bd. of Educ., 47 N.C. App. 271, 279, 267 S.E.2d 349,
354 (1980) (citation omitted). Our appellate courts have made clear that estoppel
“may not arise against a governmental entity if such estoppel will impair the exercise
of the governmental powers of the entity.” Wallace v. Bd. of Tr., 145 N.C. App. 264,
277, 550 S.E.2d, 552, 560 (citation omitted), disc. review denied, 354 N.C. 580, 559
S.E.2d 553 (2001).
The Solid Waste Management Act states, in pertinent part, as follows:
(a) For the purpose of promoting and preserving an
environment that is conducive to public health and
welfare, and preventing the creation of nuisances and
the depletion of our natural resources, the Department
shall maintain a Division of Waste Management to
promote sanitary processing, treatment, disposal, and
statewide management of solid waste and the greatest
possible recycling and recovery of resources, and the
Department shall employ and retain qualified
personnel as may be necessary to effect such
purposes. . . .
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(b) In furtherance of this purpose and intent, it is
hereby determined and declared that it is necessary for
the health and welfare of the inhabitants of the State
that solid waste management facilities permitted
hereunder and serving a specified geographic area
shall be used by public or private owners or occupants
of all lands, buildings, and premises within the
geographic area. Actions taken pursuant to this
Article shall be deemed to be acts of the sovereign
power of the State of North Carolina[.]
N.C. Gen. Stat. § 130A-291 (2017). It is clear that DEQ’s responsibility for enforcing
the Act — along with the provisions of the North Carolina Administrative Code
promulgated thereunder — directly invokes its core governmental powers.
Our Supreme Court recognized the inability of a city to be estopped from
exercising its governmental authority in City of Raleigh v. Fisher, 232 N.C. 629, 61
S.E.2d 897 (1950). In that case, the defendants were allowed to operate a bakery
within an area zoned for residential use with the knowledge of city officials for over
ten years. Id. at 632, 61 S.E.2d at 900. During that time period, the defendants both
increased their business operations and invested substantial amounts of money into
the bakery. When the city later sought to enforce its zoning regulations against them,
the defendants argued that the city was estopped from doing so “because its officials
ha[d] encouraged and permitted such conduct for at least ten years.” Id. In rejecting
the defendants’ argument, the Supreme Court stated the following:
In enacting and enforcing zoning regulations, a
municipality acts as a governmental agency and exercises
the police power of the State. The police power is that
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inherent and plenary power in the State which enables it
to govern, and to prohibit things hurtful to the health,
morals, safety, and welfare of society. In the very nature
of things, the police power of the State cannot be bartered
away by contract, or lost by any other mode.
Id. at 635, 61 S.E.2d at 902 (internal citations omitted). As a result, the Court held
that the city could not be estopped from enforcing its zoning ordinances against the
defendants despite the longstanding acquiescence of city officials to the defendants’
zoning violations prior to beginning enforcement efforts. Id.5
This principle was also applied in Mecklenburg County v. Westbery, 32 N.C.
App. 630, 233 S.E.2d 658 (1977), which involved a mistakenly issued zoning permit
that was later revoked by the county after the defendants had “incurred a substantial
expense in good faith reliance upon [the] permit before it was revoked[.]” Id. at 635,
233 S.E.2d at 661. Citing Fisher, this Court held that the county could not be
estopped from revoking the permit because “the planned usage was illegal from its
inception” and “a contrary decision would require an acceptance of the paradoxical
proposition that a citizen can acquire immunity to the law of his country by habitually
violating such law with the consent of unfaithful public officials charged with the
5 TRK argues that Fisher was later distinguished by this Court’s decision in City of Winston-
Salem v. Hoots Concrete Company, Inc., 37 N.C. App. 186, 245 S.E.2d 536, disc. review denied, 295
N.C. 645, 248 S.E.2d 249 (1978). However, Hoots dealt with the question of whether or not a zoning
officer had issued a building permit in accordance with applicable zoning regulations. Id. at 189, 245
S.E.2d at 538. In our opinion, we expressly stated that our decision was not in conflict with “the
principle of law set out in . . . Fisher” and that if the zoning permit had, in fact, been issued in error
“the city cannot be estopped to enforce its zoning ordinance under an appropriate interpretation of the
ordinance.” Id. at 190, 245 S.E.2d at 538.
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duty of enforcing it.” Id. (citation and quotation marks omitted). See also Kings
Mountain Bd. of Educ. v. N.C. State Bd. of Educ., 159 N.C. App. 568, 578, 583 S.E.2d
629, 636 (2003) (holding that State Board of Education could not be estopped from
approving school merger where “application of the estoppel doctrine would impede
the State Board from exercising its legislative power to approve or deny school
mergers”).
In arguing that the application of estoppel in the present case would not impair
the exercise of DEQ’s governmental powers, TRK attempts to rely upon County of
Wake v. North Carolina Department of Environment & Natural Resources, 155 N.C.
App. 225, 573 S.E.2d 572 (2002), disc. review denied, 357 N.C. 62, 579 S.E.2d 387
(2003), and Fike v. Board of Trustees, 53 N.C. App. 78, 279 S.E.2d 910, disc. review
denied, 304 N.C. 194, 285 S.E.2d 98 (1981). Both cases, however, are inapposite.
County of Wake concerned a dispute between the Town of Holly Springs and
Wake County over the siting of a landfill. Holly Springs initially approved the
proposed landfill site and accepted compensation from Wake County before revoking
its approval years later. Cty. of Wake, 155 N.C. App. at 230, 573 S.E.2d at 577. We
held that Holly Springs was estopped from reneging on its agreement with Wake
County because “[t]o allow the Town to withdraw its approval . . . would be
inequitable under the circumstances.” Id. at 241, 573 S.E.2d at 584. The dispute in
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that case, however, was purely contractual as no evidence was presented showing
that any statute or regulation was violated by the siting of the landfill.
In Fike, a state employee sought to compel the State Employees’ Retirement
System to provide him with disability retirement benefits. Fike, 53 N.C. App. at 79,
279 S.E.2d at 912. This Court ruled that the Retirement System was estopped from
denying benefits to the employee where the Retirement System made representations
that the employee’s personnel officer would assist him with the proper execution of
the correct forms for obtaining benefits, but the personnel officer failed to do so. Id.
at 81, 279 S.E.2d at 913. Like County of Wake, the dispute in Fike did not concern
the exercise of a police power by a governmental entity. Indeed, we expressly noted
that “application of principles of estoppel in the present case would not impair the
exercise of [the Retirement System’s] governmental powers.” Id. at 82, 279 S.E.2d at
913.
Here, the ALJ’s findings established that TRK was in violation of the Solid
Waste Management Act. It is beyond dispute that the Act serves important interests
in terms of regulating “in the most economically feasible, cost-effective, and
environmentally safe manner the storage . . . and disposal of solid waste in order to
protect the public health, safety, and welfare; enhanc[ing] the environment for the
people of this State; and recover[ing] resources which have the potential for further
usefulness.” N.C. Gen. Stat. § 130A-309.03(b)(1) (2017). Moreover, as noted earlier,
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the Act specifically provides that “[a]ctions taken pursuant to this Article shall be
deemed to be acts of the sovereign power of the State of North Carolina[.]” N.C. Gen.
Stat. § 130A-291.
Thus, DEQ’s duty to enforce the Solid Waste Management Act and its
accompanying regulations epitomizes the type of core police power possessed by a
government agency that cannot be impaired by estoppel. Accordingly, on this ground
alone, the trial court erred in affirming the final decision of the ALJ.
II. Elements of Equitable Estoppel
The ALJ and the trial court also erred in their application of the elements of
equitable estoppel to these facts. Therefore, we deem it appropriate to address this
issue as well.
It is helpful at the outset to review basic principles regarding equitable
estoppel.
[T]he essential elements of an equitable estoppel as related
to the party estopped are: (1) Conduct which amounts to a
false representation or concealment of material facts, or, at
least, which is reasonably calculated to convey the
impression that the facts are otherwise than, and
inconsistent with, those which the party afterwards
attempts to assert; (2) intention or expectation that such
conduct shall be acted upon by the other party, or conduct
which at least is calculated to induce a reasonably prudent
person to believe such conduct was intended or expected to
be relied and acted upon; (3) knowledge, actual or
constructive, of the real facts. As related to the party
claiming the estoppel, they are: (1) lack of knowledge and
the means of knowledge of the truth as to the facts in
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question; (2) reliance upon the conduct of the party sought
to be estopped; and (3) action based thereon of such a
character as to change his position prejudicially.
Hawkins, 238 N.C. at 177-78, 77 S.E.2d at 672 (citation omitted).
This Court has held that “mere silence will not operate to create an estoppel.
In order to work an estoppel the silence must be under such circumstances that there
are both a specific opportunity, and a real or apparent duty, to speak.” Neal v. Craig
Brown, Inc., 86 N.C. App. 157, 164, 356 S.E.2d 912, 916 (internal citations, quotation
marks, and brackets omitted), disc. review denied, 320 N.C. 794, 361 S.E.2d 80 (1987).
Furthermore, “[w]hen a party is misled through his own lack of diligence and
reasonable care, he may not then avail himself of the doctrine of equitable estoppel.”
N.C. Fed. Sav. & Loan Ass’n v. Ray, 95 N.C. App. 317, 323, 382 S.E.2d 851, 855 (1989)
(citation omitted). Finally, it is a well-established principle that “everyone is equally
capable of determining the law, is presumed to know the law and . . . cannot be
deceived by representations concerning the law or [be] permitted to say he or she has
been misled.” Dalton v. Dalton, 164 N.C. App. 584, 586, 596 S.E.2d 331, 333 (2004)
(citation omitted).
In the present case, TRK submitted plans on 18 June 2014 to the Land Quality
Section for the sole purpose of seeking approval for an erosion and sedimentation
control plan. Based upon these submissions, the Land Quality Section issued
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documentation containing the limited and specific approval TRK had sought.6 The
Letter of Approval explicitly stated that “[t]his approval does not supersede any other
permit or approval.”
Despite the fact that the approval documents did not in any way mention the
issue of solid waste disposal, TRK nevertheless contends that DEQ’s approval of the
erosion and sedimentation control plan should be deemed to be a representation by
DEQ that TRK’s project was — and would continue to be — in full compliance with
the Solid Waste Management Act. This argument lacks merit.
The Letters of Approval and Certificates of Plan Approval issued by the Land
Quality Section were, by their express terms, limited to the erosion and
sedimentation control plan submitted by TRK and merely signified the compliance of
the plan with the Sedimentation Pollution Control Act. None of the language
appearing in these documents can be read as amounting to a declaration by DEQ that
its approval of the erosion and sedimentation control plan also constituted approval
of other aspects of TRK’s construction project.
TRK also argues that the soil boring markers on the plans it submitted to the
Land Quality Section indicated the presence of trash beneath the surface of the
proposed excavation site and therefore (1) provided DEQ with knowledge of the
necessity for TRK to obtain a solid waste permit; and (2) triggered an obligation on
6 We note that TRK does not allege that DEQ has ever attempted to revoke its prior approval
of the erosion and sedimentation control plan submitted by TRK.
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the part of the Land Quality Section to refer the application to the Division of Waste
Management. This argument fails for several reasons.
First, to the extent that the soil boring markers provided DEQ with any
indication of the eventual necessity for TRK to obtain a solid waste permit, such
knowledge could be equally imputed to TRK, which was the entity ultimately
responsible for ensuring that its project complied in all respects with North Carolina
law. Second, while coordination among different sections of a state agency in
appropriate circumstances is desirable, TRK has cited no legal authority suggesting
that the Land Quality Section was somehow required as a matter of law to refer TRK’s
erosion and sedimentation control plan to the Solid Waste Section.
Finally, it is clear that TRK was not actually in violation of the Solid Waste
Management Act at the time DEQ gave its approval for TRK’s erosion and
sedimentation control plan. Instead, TRK only began violating the Solid Waste
Management Act once it actually started excavating and disposing of solid waste on
its property. Thus, in essence, TRK is making the novel argument that DEQ should
be estopped based on its failure to foresee a future violation of the statute by TRK.
TRK has failed to explain why DEQ was legally required to assume that as the project
moved forward TRK would proceed to dispose of this trash in a manner that was
unlawful under the Solid Waste Management Act.
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N.C. DEP’T OF ENVTL. QUALITY V. TRK DEV., LLC
Opinion of the Court
In sum, at no point was there any valid basis for TRK to believe that the
documentation it had previously received from the Land Quality Section meant
anything more than that its erosion and sedimentation control plan had been
approved. Consequently, TRK’s claimed reliance upon this limited approval as a
basis for believing it could lawfully proceed to excavate and dispose of 1.7 acres of
solid waste without a solid waste permit in violation of the Solid Waste Management
Act was manifestly unreasonable. In actuality, TRK was misled only by its “own want
of reasonable care and circumspection.” Peek v. Wachovia Bank & Tr. Co., 242 N.C.
1, 12, 86 S.E.2d 745, 753 (1955) (citation omitted).
Conclusion
For the reasons stated above, we reverse the trial court’s 26 January 2017
order and remand for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
Judges STROUD and ARROWOOD concur.
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