               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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                                 Opinion of the Court



      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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                  N.C. DEP’T OF ENVTL. QUALITY V. TRK DEV., LLC

                                  Opinion of the Court



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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