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Home / Courts / N.C. Court of Appeals / Real Property – Ground-Disturbing Activity – Erosion Control Permit – Buried Trash Uncovered – Estoppel — Administrative

Real Property – Ground-Disturbing Activity – Erosion Control Permit – Buried Trash Uncovered – Estoppel — Administrative

Before respondent began its ground-disturbing project, one of the petitioner-department’s sections issued respondent an erosion and sedimentation control permit pursuant to the Sedimentation Pollution Control Act. This did not estop another of petitioner’s sections from finding that respondent was violating the Solid Waste Management Act when the ground-disturbing project turned up buried garbage, which respondent moved to another lot and spread over 1.7 acres at a height of 20 to 30 feet.

We reverse the superior court’s order, which affirmed the administrative law judge’s ruling that petitioner was estopped from issuing a compliance order.

Estoppel may not arise against a governmental entity if such estoppel will impair the exercise of the governmental powers of the entity. It is clear that petitioner’s responsibility for enforcing the Solid Waste Management Act directly invokes its core governmental powers. In fact, the act says, “Actions taken pursuant to this Article shall be deemed to be acts of the sovereign power of the State of North Carolina. . . .” G.S. § 130A-291.

In any event, respondent did not establish the elements of estoppel.

The letter approving respondent’s erosion control plan explicitly stated, “This approval does not supersede any other permit or approval.” None of the language in the approval documents can be read as amounting to a declaration by petitioner that its approval of the erosion and sedimentation control plan also constituted approval of other aspects of respondent’s construction project.

Respondent points out that soil borings included in its erosion control plan indicated the presence of trash in multiple locations beneath the surface of the soil respondent intended to excavate.

First, to the extent that the soil boring markers provided petitioner with any indication of the eventual necessity for respondent to obtain a solid waste permit, such knowledge could be equally imputed to respondent. Second, while coordination among different sections of a state agency may be desirable, respondent has cited no legal authority suggesting that petitioner’s Land Quality Section was somehow required as a matter of law to refer respondent’s erosion and sedimentation control plan to petitioner’s Solid Waste Section.

Finally, respondent was not in violation of the Solid Waste Management Act at the time petitioner gave its approval for respondent’s erosion and sedimentation control plan. Respondent only began violating the Solid Waste Management Act once it started excavating and disposing of solid waste on its property.

In essence, respondent is making the novel argument that petitioner should be estopped based on its failure to foresee a future violation of the statute by respondent. Respondent has failed to explain why petitioner was legally required to assume that, as the project moved forward, respondent would proceed to dispose of this trash in a manner that was unlawful under the Solid Waste Management Act.

Reversed and remanded.

N.C. Department of Environmental Quality v. TRK Development, LLC (Lawyers Weekly No. 011-172-18, 20 pp.) (Mark Davis, J.) Appealed from Cabarrus County Superior Court (Julia Lynn Gullett, J.) T. Hill Davis III for petitioner; Andrew Cornelius and Austin Entwistle III for respondent. N.C. App.

 

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