N.C. DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WASTE MANAGEMENT, Petitioner,
TRK DEVELOPMENT, LLC, Respondent.
in the Court of Appeals 21 March 2018.
by petitioner from order entered 26 January 2017 by Judge
Julia Lynn Gullett in Cabarrus County No. 16 CVS 2281
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.
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.
Factual and Procedural Background
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
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. 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
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
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.
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.
receiving these approvals, TRK began construction on the
warehouse addition in September 2014. On 18 September 2014,
an inspector with the Land Quality Section conducted an
inspection of the construction site and determined that it
was in compliance with the Sedimentation Pollution Control
Act of 1973.
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
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 "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."
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
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.
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 the disposal of solid waste. 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."
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."
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 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."
February 2015, TRK sent a letter to DEQ responding to the
Notice of Violation. The letter ...