IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-355
Filed: 7 January 2020
Buncombe County, No. 18-CVS-1731
STATE OF NORTH CAROLINA, ex. rel., MICHAEL S. REGAN, SECRETARY, NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WASTE MANAGEMENT, Plaintiff,
v.
WASCO, LLC, Defendant.
Appeal by Defendant from orders denying Defendant’s motion to dismiss,
entering summary judgment for Plaintiff, and permanently enjoining Defendant
entered 27 November 2018 by Judge R. Gregory Horne in Buncombe County Superior
Court. Heard in the Court of Appeals 30 October 2019.
Attorney General Joshua H. Stein, by Assistant Attorneys General Michael Bulleri and T. Hill Davis, III, for the State.
Troutman Sanders LLP, by Christopher G. Browning, Jr., Sean M. Sullivan, and Lisa Zak, for the Defendant.
BROOK, Judge.
WASCO, LLC, (“Defendant”) appeals from trial court orders denying
Defendant’s motion to dismiss, entering summary judgment for the North Carolina
Department of Environmental Quality, Division of Waste Management (“Plaintiff”),
and permanently enjoining Defendant. Because this Court has previously held that
Defendant is liable for submitting a Part B post-closure permit as the operator of a N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
Opinion of the Court
facility under the Resource Conservation and Recovery Act (“RCRA”) in WASCO LLC
v. N.C. Dep’t of Env’t & Nat. Res., 253 N.C. App. 222, 799 S.E.2d 405 (2017) (“WASCO
I”), we affirm.
I. Factual Background
The pertinent factual background is fully laid out in WASCO I, and we repeat
only the facts necessary to decide the instant appeal.
The facility at issue is a former textile manufacturing facility located in
Swannanoa, North Carolina (“the Facility”). WASCO I, 253 N.C. App. at 225, 799
S.E.2d at 408. Prior to Defendant’s purchase of the Facility, underground tanks were
used to store virgin and waste perchloroethylene (“PCE”), a dry-cleaning solvent. Id.
PCE leaked from the tanks and contaminated the soil. Id. The tanks were removed,
and the resulting pits were filled with the contaminated soil. Id.
In 1990, the then-operator of the facility, Asheville Dyeing & Finishing
(“AD&F”), a division of Winston Mills, Inc., entered into an Administrative Order on
Consent with Plaintiff that set forth a plan to close the Facility. Id. The Facility was
certified closed in 1993. Id. In 1995, Winston Mills and its parent corporation,
McGregor Corporation, sold the site to Anvil Knitwear, Inc. and provided Anvil
Knitwear indemnification rights for “environmental requirements.” Id. Culligan
International Company (“Culligan”) co-guaranteed Winston Mills’s performance of
indemnification for environmental liabilities. Id.
-2- N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
In 1998, Defendant’s predecessor in interest, United States Filter Corporation,
acquired stock of Culligan Water Technologies, Inc., which owned Culligan. Id.
Defendant then provided Plaintiff with a trust fund to the benefit of Plaintiff as
financial assurance on behalf of Culligan, as well as an irrevocable standby letter of
credit for the account of AD&F. Id. In 2004, Defendant sold Culligan and agreed to
indemnify the buyer as to identified environmental issues at the Facility. Id. at 225-
26, 799 S.E.2d at 408. From that point forward, Part A permit applications signed
by Defendant’s director of environmental affairs identified Defendant as the operator
of the facility. Id. at 226, 799 S.E.2d at 408.
In 2007, Defendant received a letter from Plaintiff indicating that the Facility
required corrective action to develop a groundwater assessment plan to address the
migration of hazardous waste in the groundwater. Id. Defendant, its hired
consultant, and Plaintiff continued to develop a groundwater assessment plan. Id.
The following year, in 2008, Anvil Knitwear sold the property to Dyna-Diggr, LLC.1
Id. At that point, both Defendant and Anvil disclaimed responsibility for post-closure
actions at the Facility. Id.
Litigation resulting from the disagreement regarding responsibility for post-
closure actions resulted in the decision reached by this Court in WASCO I.
II. Procedural Background
1 In various filings in the record, the current owner of the facility is called “Dyna-Diggr,” “Dyna
Diggr,” “Dyna-Digr,” and “Dyna Digr.”
-3- N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
In WASCO I, this Court held that Defendant was liable for securing a post-
closure permit as an operator of the Facility. WASCO I, 253 N.C. App. at 237, 799
S.E.2d at 415. After this Court’s unanimous decision in WASCO I, Defendant filed a
Petition for Discretionary Review under N.C. Gen. Stat § 7A-31 in the North Carolina
Supreme Court. WASCO LLC v. N.C. Dep’t of Env’t & Nat. Res., Div. of Waste Mgmt.,
370 N.C. 276, 805 S.E.2d 684, 685 (2017). The Supreme Court denied review. Id.
Despite the decision of this Court, Defendant did not seek a post-closure permit
as required by 40 C.F.R. § 270.10(b) and 40 C.F.R. § 270.1, incorporated by reference
in 15A NCAC 13A.0113. Instead, Defendant filed a Petition for Rule Making before
the Environmental Management Commission (“EMC”), seeking to change the
definition of the term “operator” in the North Carolina Administrative Code. EMC
denied Defendant’s petition on 8 March 2018. Defendant then filed a Petition for
Declaratory Ruling before the EMC on 8 December 2017, requesting a ruling that
Plaintiff “lacks the authority to require WASCO to obtain a post-closure permit or a
post-closure order for the Facility pursuant to 15A NCAC [13A].0113(a) (adopting 40
C.F.R. § 270.1(c)).” Defendant amended this petition on 27 February 2018 seeking
the same ruling. On 3 March 2018, Defendant filed a new Petition for Declaratory
Ruling before the EMC, seeking the same ruling. Defendant withdrew the first
amended Petition for Declaratory Ruling, and the new Petition was scheduled for
hearing at the time Plaintiff commenced this action.
-4- N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
On 18 April 2018, Plaintiff filed a Complaint and Motion for Preliminary and
Permanent Injunctive Relief. Plaintiff sought a mandatory injunction requiring
Defendant to, among other things, “[s]ubmit, within 90 days of issuance of an Order,
a complete application for a RCRA Part B post-closure permit in accordance with 40
CFR 270.10 addressing all of the applicable requirements of Chapter 40 of the Code
of Federal Regulations and the State Hazardous Waste Program[.]”
Defendant filed a Motion to Dismiss on 9 July 2018, alleging that Plaintiff had
“fail[ed] to join the current owner and operator of the Facility, Dyna-Diggr, LLC
(‘Dyna-Diggr’) and Brisco, Inc. (an additional current operator of the Facility), as well
as the former owners and operators of the Facility, as necessary parties.” 2 Plaintiff
then filed a Motion for Summary Judgment, alleging “that there are no disputed
issues of material fact and that Plaintiff is entitled to judgment as a matter of law”
because Defendant failed to comply with this Court’s decision in WASCO I requiring
Defendant to submit a Part B post-closure permit application under RCRA.
A hearing on the motions was held before Judge R. Gregory Horne on 31
October 2018. The trial court determined that Plaintiff had not failed to join any
necessary parties and denied Defendant’s motion to dismiss. The trial court made
2 At the hearing on the motion to dismiss and motion for summary judgment, Defendant argued that Dyna-Diggr only must be joined as a necessary party. Despite identifying Brisco, Inc. as a current operator in its Motion to Dismiss, Defendant has not raised this argument with regard to any party other than Dyna-Diggr in its brief. Therefore, we deem this argument abandoned regarding any parties other than Dyna-Diggr. N.C. R. App. P. 28(a).
-5- N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
the following oral findings of fact and conclusions of law to support the denial of
Defendant’s motion to dismiss and the grant of Plaintiff’s motion for summary
judgment:
THE COURT: All right, thank you. . . . the Court of Appeals and the Supreme Court often . . . talk about changing horses midstream in litigation. And oftentimes . . . they’re talking about a situation in which there was not an issue raised in the trial courts, so as a result, the trial court didn’t have an opportunity to consider or rule upon the issue. But prior to [] getting to the appellate courts and prior to hearing, [] the parties change horses or change legal theories, change legal strategies and bring up issues that were not brought up in trial court. Of course, appellate cases indicate that that is not allowed to be done.
Now, I must again say that . . . I’m far from an expert in the area of the EPA . . . . This is an area that clearly is a specialty, even folks who are specialized in it, I think, would have frequent updates and interpretations throughout.
However, initially, when I looked at it it appeared to me that the defendant WASCO, the plaintiff in the original case before the Court of Appeals, was changing horses midstream in that, although somewhat differently, . . . it was heard first with an administrative law judge, went through the trial court, and then went to the Court of Appeals and then not receiving relief, changed horses and repackaged and attempted to relitigate. I hear from WASCO that, in fact, they are looking at some new regulations that have come out that weren’t present at the time.
What this Court does understand is that this Court is bound by the decision of the North Carolina Appellate Courts, and the decision as I read it is clear. I had underlined and underscored a number of cases, the State
-6- N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
has quoted some, but indicated it’s WASCO’s responsibility to obtain a postclosure permit for the site that is at issue in the present case. And there’s a quote—additionally, Part A permit – it’s on page six. (As read) Application signed by WASCO’s director of environmental affairs identified WASCO as the operator, and WASCO continued to pay consultants and take action at the site.
The [C]ourts in their conclusion indicate, (as read) We hold WASCO as an operator of a landfill for purposes of the postclosure permitting requirement at the site.
So it is the Court’s belief and, indeed, that . . . upon petition for discretionary review, the North Carolina Supreme Court denying that, Court believes it is the law of the case at this time.
So that brings us to the present action in 18 CVS 1731 in which the department is seeking a motion for summary judgment. Court having considered the submissions, having respectfully considered the arguments of counsel, the Court would find and conclude that there remains no genuine issue of material fact, and that Plaintiff, then, the department and the division are entitled to judgment as a matter of law. Court therefore grants the summary judgment motion and requires WASCO to submit to [sic] this Part B postclosure permit application within 90 days of signing and filing of this order.
Following the hearing, the trial court entered an order denying Defendant’s
motion to dismiss on 12 December 2018 and an order entering summary judgment
for Plaintiff. The order denying Defendant’s motion to dismiss included the following
findings and conclusions:
1. On April 18, 2017, the Court of Appeals issued a unanimous decision holding that Defendant “WASCO was the party responsible for and directly involved in the post-
-7- N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
closure activities subject to regulation” at the former Asheville Dyeing & Finishing Plant located at 850 Warren Wilson Road, Swannanoa (“the Facility”) in Buncombe County. WASCO LLC v. N.C. Dep’t of Env’t and Natural Res., No. COA 16 414 (N.C. Ct. App. Apr. 18, 2017). The Court of Appeals framed the issue as follows: “It is WASCO’s responsibility to obtain a post-closure permit for the Site that is at issue in the present case.” Id at page 5. The Court of Appeals opinion affirmed the final order and judgment of the trial court and held that “WASCO is an operator of a landfill for purposes of the post-closure permitting requirement at the Site”. Id at page 22.
2. WASCO was the only party to this Court of Appeals’ decision other than the Department of Environmental Quality.
3. On November 1, 2017, the North Carolina Supreme Court denied WASCO’s petition for discretionary review of the decision of the Court of Appeals.
4. WASCO remains the operator of the Facility and, as the issue was framed in the Court of Appeals’ decision, is responsible for post-closure care and for obtaining a post- closure permit for the Facility.
5. In the present action, the State is seeking to enforce the decision of the Court of Appeals against WASCO. WASCO has not obtained the required permit and has ceased performing any post-closure activities at the Facility.
6. WASCO’s responsibilities as an operator are distinct from the responsibilities of the Facility’s owner, or of past owners or operators. The owner of the Facility has its own responsibilities under the State Hazardous Waste Rules that arise from its status as owner of the Facility, which are not affected by the present action.
7. Liability under the State Hazardous Waste Rules is joint and several.
-8- N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
8. Enforcing the Court of Appeals’ decision against WASCO will not directly affect the interests of any person who is not a party to this action.
Upon these findings and conclusions, the trial court denied Defendant’s motion to
dismiss.
The order granting summary judgment included the following findings and
conclusions:
1. On April 18, 2017, the Court of Appeals issued a unanimous decision holding that Defendant “WASCO was the party responsible for and directly involved in the post- closure activities subject to regulation” at . . . (“the Facility”) in Buncombe County. . . . The Court of Appeals framed the issue as follows: “It is WASCO’s responsibility to obtain a post-closure permit for the Site that is at issue in the present case.” . . . The Court of Appeals opinion affirmed the final order and judgment of the trial court and held that “WASCO is an operator of a landfill for purposes of the post-closure permitting requirement at the Site.” . . . Thus, the Court of Appeals’ ruling obligated WASCO to comply with the post-closure permitting obligations at the Facility under the Resource Conservation and Recovery Act (“RCRA”), as incorporated and adopted by the North Carolina Solid Waste Management Act, Chapter 130A, Article 9 of the North Carolina General Statutes, and the rules promulgated thereunder and codified in Subchapter 13A of Title 15A of the North Carolina Administrative Code (collectively, “the State Hazardous Waste Program”).
2. The North Carolina Supreme Court denied WASCO’s Petition for Discretionary Review of the Court of Appeals’ decision on November 1, 2017, establishing the Court of Appeals’ decision as the final ruling in this matter.
3. In the year since, WASCO has not submitted a Part B permit application for a post-closure permit for the Facility
-9- N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
pursuant to 40 CFR 270.1 and 40 CFR 270.10, adopted by reference at 15A NCAC 13A.0113. WASCO has since entry of the order ceased all activity at the Facility. WASCO has stated in its briefing in response to the instant motion that “WASCO is not now—nor does it have any intention of— taking any further action of any kind at the Facility.”
4. All of the arguments raised by WASCO in response to the Department’s motion were raised, or could have been raised, in the prior litigation culminating in the decision of the Court of Appeals. WASCO’s arguments are therefore barred by the doctrines of res judicata, estoppel, and the law of the case.
5. Recent changes in the rules governing generators of hazardous waste have no bearing on WASCO’s status and responsibilities as an operator of the Facility. Moreover, these new rules do not retroactively alter the fact that the Facility was closed as a landfill and is subject to post closure regulation, including permitting requirements, under RCRA and the State Hazardous Waste Program. This too is res judicata and the law of the case, and WASCO is estopped from relitigating these issues.
6. WASCO remains the operator of the Facility and, as the issue was framed in the Court of Appeals’ decision, is responsible for post-closure care and for obtaining a post- closure permit for the Facility.
On these findings and conclusions, the trial court granted Plaintiff’s motion for
summary judgment.
The court then issued an injunction requiring that “[w]ithin ninety (90) days
of entry of this Order, WASCO shall submit a RCRA Part B post-closure permit
application for the Facility to the Department.” The injunction required that
“WASCO shall in good faith make best efforts to submit this application in an
- 10 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
approvable form” and that “WASCO shall work diligently and in good faith, using
best efforts, to correct as expeditiously as possible any deficiencies identified by the
Department in the permit application submitted[.]”
Defendant properly noticed appeal from the denial of its motion to dismiss, the
grant of summary judgment, and the injunction on 27 December 2018. The same day
Defendant noticed appeal, it filed a motion for reconsideration and motion to stay
with the trial court “request[ing] that the Court reconsider the Orders and stay their
effectiveness while such reconsideration occurs, or, alternatively, stay the
effectiveness of the Orders pending WASCO’s appeal of the same.” On 23 January
2019, the trial court denied Defendant’s motion to stay. It also denied Defendant’s
motion for reconsideration for lack of jurisdiction. On 1 August 2019, Plaintiff
submitted a supplement to the appellate record, and Defendant filed a Motion to
Strike Appellee’s Record Supplement on 19 August 2019.
III. Jurisdiction
Jurisdiction lies with this Court as an appeal from a final judgment under N.C.
Gen. Stat. § 7A-27(b)(1).
IV. Analysis
Defendant argues that the trial court erred in failing to dismiss Plaintiff’s
claim as moot, in failing to dismiss the claim for failure to join Dyna-Diggr as a
necessary party, in granting summary judgment for Plaintiff, and in issuing an
- 11 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
injunction ordering that Defendant secure a post-closure permit. We address each
claim in turn.
A. Denial of Motion to Dismiss
i. Standard of Review
The denial of a motion to dismiss for failure to join a necessary party is
reviewed as a question of law. Merrill v. Merrill, 92 N.C. 657, 660 (1885). “[W]e
review the trial court’s conclusions of law for legal accuracy and to ensure that those
conclusions reflect a correct application of law to the facts found.” State v. Rooks, 196
N.C. App. 147, 150, 674 S.E.2d 738, 740 (2009) (citation omitted). “We review the trial
court’s findings of fact to determine whether they are supported by competent record
evidence[.]” Id. (internal marks and citation omitted).
ii. Merits
1. Mootness
Defendant argues that because EMC promulgated new regulations affecting
generators of hazardous waste, Plaintiff’s “directive that [Defendant] must apply for
a RCRA Part B Permit became moot[,]” and that the superior court erred in failing to
dismiss Plaintiff’s action as moot. However, Defendant’s liability as an operator was
decided by this Court in WASCO I, and nothing about Defendant’s liability as an
operator has changed subsequent to that opinion. Therefore, we reject Defendant’s
argument according to the doctrine of the law of the case and judgment by estoppel,
- 12 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
explained in Poindexter v. First Nat’l Bank of Winston Salem, 247 N.C. 606, 101
S.E.2d 682 (1958): “[W]hen a fact has been agreed on or decided in a court of record,
neither of the parties shall be allowed to call it in question, and have it tried over
again at any time thereafter, so long as the judgment or decree stands unreversed[.]”
Id. at 618, 101 S.E.2d at 691.
“Owners and operators of . . . landfills . . . must have post-closure permits . . .
for the ‘treatment,’ ‘storage,’ and ‘disposal’ of any ‘hazardous waste’ as identified or
listed in [the statute].” 40 C.F.R. § 270.1(c) (2018). In WASCO I, this Court held
“WASCO is an operator of a landfill for purposes of the post-closure permitting
requirement at the Site.” 253 N.C. App. at 237, 799 S.E.2d at 415. The Facility “was
certified closed as a landfill in 1993.” Id. at 231, 799 S.E.2d at 411. Therefore, as an
operator of a landfill, Defendant “must have [a] post-closure permit[]” for the Facility.
Id. (quoting 40 C.F.R. § 270.1(c) (incorporated by reference in 15A NCAC
13A.01139a)).
Generators are separately defined as “any person, by site location, whose act,
or process produces ‘hazardous waste’ identified or listed in 40 CFR part 261.” 40
C.F.R. § 270.2(b)(2) (2018). Defendant points to the Hazardous Waste Generator
Improvements Rule, 81 Fed. Reg. 85732 (Nov. 28, 2016), adopted by EMC as of 1
March 2018, in arguing its responsibilities have somehow changed. 32 N.C. Reg. 738
(rule submitted for approval by Rules Review Commission); 32 N.C. Reg. 1803
- 13 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
(approval of Rule by Rules Review Commission). The Hazardous Waste Generator
Improvements Rule was promulgated
to improve compliance and thereby enhance protection of human health and the environment[;] . . . revise certain components of the hazardous waste generator regulatory program; . . . provide greater flexibility for hazardous waste generators to manage their hazardous waste in a cost- effective and protective manner; reorganize the hazardous waste generator regulations to make them more user- friendly and thus improve their usability by the regulated community[.]
81 Fed. Reg. 57918 (emphasis added).
In WASCO I, this Court did not determine Defendant’s liability as a hazardous
waste generator but rather as an operator of a landfill. 253 N.C. App. at 237, 799
S.E.2d at 415. It made this determination under 40 C.F.R. § 270.1(c), which remains
in effect in the same form as when WASCO I was decided. The Hazardous Waste
Generator Improvements Rule has no bearing on Defendant’s liability as an operator
of a landfill under a distinct statute.
Our conclusion in WASCO I is the law of the case. That doctrine provides that
“once an appellate court has ruled on a question, that decision becomes the law of the
case and governs the question both in subsequent proceedings in a trial court and on
subsequent appeal.” Weston v. Carolina Medicorp, Inc., 113 N.C. App. 415, 417, 438
S.E.2d 751, 753 (1994); see also In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30,
37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, . . . a
subsequent panel of the same court is bound by that precedent, unless it has been
- 14 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
overturned by a higher court.”). Defendant “therefore is foreclosed from relitigating
the question of [its liability as an operator] in this or any other subsequent
proceeding. Furthermore, under general rules of estoppel by judgment, [Defendant]
is similarly precluded from relitigating an issue adversely determined against him.”
Weston, 11 N.C. App. at 418, 438 S.E.2d at 753. Finally, the recently promulgated
generator rule does nothing to change these legal realities.
2. Failure to Join Necessary Party
Defendant also contends that the trial court erred in failing to dismiss the
complaint for failure to join a necessary party, Dyna-Diggr, the current owner of the
Facility. North Carolina Rule of Civil Procedure 19 provides that “those who are
united in interest must be joined as plaintiffs or defendants[.]” It provides also that
[t]he court may determine any claim before it when it can do so without prejudice to the rights of any party or to the rights of others not before the court; but when a complete determination of such claim cannot be made without the presence of other parties, the court shall order such other parties summoned to appear in the action.
N.C. Gen. Stat. § 1A-1, Rule 19(b) (2017). “A person is a necessary party to an action
when he is so vitally interested in the controversy involved in the action that a valid
judgment cannot be rendered in the action completely and finally determining the
controversy without his presence as a party.” Law Offices of Mark C. Kirby, P.A. v.
Indus. Contractors, Inc., 130 N.C. App. 119, 124, 501 S.E.2d 710, 713 (1998); see also
Boone v. Rogers, 210 N.C. App. 269, 270-71, 708 S.E.2d 103, 105 (2011) (explaining
- 15 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
that necessary parties have “material interests . . . [that] will be directly affected by
an adjudication of the controversy.” (citation omitted)); Wall v. Sneed, 13 N.C. App.
719, 724, 187 S.E.2d 454, 457 (1972) (“Necessary parties are those persons who have
rights which must be ascertained and settled before the rights of the parties to the
suit can be determined.” (citation omitted)).
The relevant regulation provides that “[w]hen a facility or activity is owned by
one person but is operated by another person, it is the operator’s duty to obtain a
permit, except that the owner must also sign the permit application.” 40 C.F.R.
§ 270.10(b) (2018) (incorporated by reference at 15A NCAC 13A.0113(b)). Defendant
asserts that because Dyna-Diggr, as the current owner of the Facility, “must also sign
the permit application[,]” it is a necessary party to a suit regarding Defendant’s duties
to obtain a permit as the operator of the facility. Defendant, however, fails to grapple
with the impact that joint and several liability has on the current controversy.
Accordingly, we disagree.
First, federal courts interpreting RCRA generally “impose[] . . . joint and
several liability” on responsible parties such as owners and operators. United States
v. Ne. Pharm. & Chem. Co., Inc., 810 F.2d 726, 732 n.3 (8th Cir. 1986); see also United
States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1396 (D.N.H. 1985) (holding multiple
defendants jointly and severally liable under RCRA); United States v. Conservation
Chem. Co., 619 F. Supp. 162, 199 (W.D. Mo. 1985) (“Congress . . . has authorized the
- 16 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
imposition of joint and several liability to ensure complete relief [under RCRA.]”).
Defendant cannot prevail in asserting that Dyna-Diggr is a necessary party because,
in cases of joint and several liability, “the matter can be decided individually against
one defendant without implicating the liability of other defendants.” Harlow v.
Voyager Commc’ns V, 348 N.C. 568, 571, 501 S.E.2d 72, 74 (1998). Here, Defendant’s
liability as an operator has been settled by WASCO I, and Dyna-Diggr was not a party
to that case. Additionally, because Defendant’s and Dyna-Diggr’s liability is joint and
several, Dyna-Diggr’s “interests [will not] be directly affected by the adjudication of
the controversy” between Defendant and Plaintiff such that Dyna-Diggr is a
necessary party. Durham Cty. v. Graham, 191 N.C. App. 600, 604, 663 S.E.2d 467,
470 (2008).
We also note that granting a defendant’s request for dismissal without
prejudice is the appropriate remedy only where a necessary party cannot be joined;
where the trial court identifies a necessary party, “the court shall order such other
parties summoned to appear in the action.” N.C. Gen. Stat. § 1A-1, Rule 19(b); see
Crosrol Carding Devs., Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 453 183 S.E.2d
834, 838 (1971) (reviewing trial court order joining necessary party). In other words,
dismissal would have been an appropriate remedy only had the trial court determined
Dyna-Diggr to be a necessary party and that Dyna-Diggr could not be joined as a
party.
- 17 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
We hold the trial court did not err in denying Defendant’s motion to dismiss
for failure to join a necessary party.
B. Grant of Summary Judgment
Defendant also contends that the trial court erred in granting Plaintiff’s
motion for summary judgment because there are unsettled factual issues in dispute.
We disagree.
We review an order granting a motion for summary judgment de novo.
Charlotte-Mecklenburg Hosp. Auth. v. Talford, 366 N.C. 43, 47, 727 S.E.2d 866, 869
(2012). “Under a de novo review, the court considers the matter anew and freely
substitutes its own judgment for that of the lower tribunal.” Craig v. New Hanover
Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (internal marks and
citation omitted).
A trial court shall grant summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law.” N.C. Gen Stat. §1A-1, Rule 56(c) (2017).
Here, the only issue of material fact was whether Defendant’s “failure to obtain a
post-closure permit [wa]s a violation of 40 CFR 270.1(c) and 15A NCAC 13A .0113(a).”
- 18 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
This issue was decided in WASCO I. See WASCO I, 253 N.C. App. at 231-32, 799
S.E.2d at 411-12 (holding that WASCO is an operator of a landfill and therefore
required by 40 C.F.R. § 270.1(c) (incorporated by reference in 15A NCAC 13A.0113(a))
to acquire a post-closure permit). As we have already explained, this holding is the
law of the case, and the trial court correctly granted Plaintiff’s motion for summary
judgment because no issue of material fact remained to be settled.
C. Order to Submit Permit Application
Defendant next argues that the trial court’s order “requires WASCO to
undertake something that cannot possibly be achieved in compliance with applicable
law and EPA guidance[.]” Defendant specifically contends that because Dyna-Diggr
may not live up to its obligation to “sign the permit application,” see 40 C.F.R.
§ 270.10(b) (“When a facility or activity is owned by one person but is operated by
another person, it is the operator’s duty to obtain a permit, except that the owner
must also sign the permit application.”), Defendant will be subject to contempt
sanctions. Defendant misconstrues the breadth of the trial court’s order, which is
narrower and more mindful of these particular circumstances than Defendant
suggests. Accordingly, we disagree.
We review grants of equitable relief such as injunctions for an abuse of
discretion. Roberts v. Madison Cty. Realtors Ass’n, Inc., 344 N.C. 394, 401, 474 S.E.2d
- 19 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
783, 788 (1996). “A trial court may be reversed for abuse of discretion only upon a
showing that its actions are manifestly unsupported by reason.” White v. White, 312
N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Indeed, “[a] ruling committed to a trial
court’s discretion is to be accorded great deference and will be upset only upon a
showing that it was so arbitrary that it could not have been the result of a reasoned
decision.” Id.
Nothing in these facts or the law on point supports Defendant’s argument of
impossibility. Plaintiff cites South Carolina v. United States, 907 F.3d 742, 765 (4th
Cir. 2018) in support of its argument that the trial court did not abuse its discretion
in granting the injunction, in part because it is not impossible for Defendant to comply
with the order. In that case, the U.S. Court of Appeals for the Fourth Circuit reviewed
a district court’s order requiring the Department of Energy (“DOE”) to remove a
metric ton of defense plutonium from South Carolina. Id. at 764. In determining
that the district court did not abuse its discretion, the Fourth Circuit considered that
“DOE failed to produce any evidence showing that its compliance with a two-year
removal deadline was truly impossible.” Id.
The same is true here. Defendant claims it would be impossible to comply with
the order, presenting evidence of Dyna-Diggr’s preemptive refusal to sign the permit
application. But submitting an application without Dyna-Diggr’s signature, in and
- 20 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
of itself, would not violate the order which requires only that Defendant act “in good
faith [to] make best efforts to submit th[e] application in an approvable form.”
Defendant’s argument that it may face contempt sanctions is similarly
unavailing. In South Carolina, the Fourth Circuit held that the lower court “did not
abuse its discretion in ruling that DOE could raise its impossibility argument at a
later time—if necessary—after the [i]njunction was entered.” Id. at 765 (explaining
that courts can compel compliance with statutory obligations and that parties may
raise impossibility defenses at any subsequent contempt proceedings); see Robertson
v. Jackson, 972 F.2d 529, 535 (4th Cir. 1992) (“In the event that a contempt order
should be issued against the [defendant], the defense of impossibility of compliance
would be available if he had done everything within his power to comply with the
district court’s order.”). Relatedly, should Dyna-Diggr refuse to sign the application
as the current owner of the Facility, Defendant will not be subject to contempt
sanctions so long as it has “in good faith made best efforts to submit th[e] application
in an approvable form.” Further, should Defendant in good faith submit an RCRA
Part B permit application absent Dyna-Diggr’s signature, and should that application
be denied, Defendant would be in compliance with the court’s order should it continue
to act in good faith and cooperate with Plaintiff, “work[ing] diligently . . . using best
efforts[] to correct as expeditiously as possible any deficiencies identified by the
Department[.]”
- 21 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
Finally, Defendant acknowledges that “North Carolina’s environmental
regulations provide a process when the owner of the facility refuses to cooperate—the
issuance of an administrative order requiring appropriate action.” See 42 U.S.C.
§ 6928(h) (2018). Should Defendant’s permit application be denied for lack of Dyna-
Diggr’s signature, Plaintiff could initiate separate proceedings against Dyna-Diggr,
proceedings which would not involve Defendant.
In short, only Defendant’s refusal to comply with the court order, not Dyna-
Diggr’s inaction, could result in contempt sanctions against Defendant per the trial
court order at issue. As such, we cannot hold that the injunction is “manifestly
unsupported by reason.” White, 312 N.C. at 777, 324 S.E.2d at 833 (1985).
D. Motion for Reconsideration
Defendant argues, in the alternative, that this Court should remand this
matter to the superior court for an advisory opinion on Defendant’s motion for
reconsideration.
Proper notice of appeal requires a party to “designate the judgment or order
from which appeal is taken.” N.C. R. App. P. 3(d). “Without proper notice of appeal,
this Court acquires no jurisdiction.” Brooks v. Gooden, 69 N.C. App. 701, 707, 318
S.E.2d 348, 352 (1984). “A jurisdictional default [] precludes the appellate court from
acting in any manner other than to dismiss the appeal.” Dogwood Dev. & Mgmt. Co.,
LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008).
- 22 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
Here, the trial court did not enter a judgment or order on Defendant’s motion
for reconsideration because jurisdiction was no longer vested with the trial court at
the time Defendant filed its motion. As such, Defendant did not appeal from the
denial of its Rule 60(b) motion. Therefore, jurisdiction is not properly with this Court
to consider remand.
V. Conclusion
The trial court correctly determined that this Court’s decision in WASCO I
settled the question of Defendant’s liability as an operator of the Facility as the law
of the case. No intervening developments have changed this reality; thus, we hold
that the trial court did not err in failing to dismiss Plaintiff’s complaint as moot. Nor
did the trial court err in failing to dismiss Plaintiff’s suit for failure to join a necessary
party; Defendant’s liability as the operator is separate from Dyna-Diggr’s liability as
the owner of the Facility. The trial court similarly did not err in entering summary
judgment for Plaintiff because no genuine issues of material fact remained to be
resolved; Defendant’s liability as the operator of the Facility had been decided by this
Court in WASCO I. Finally, its issuance of the injunction was within the trial court’s
discretion and does not require anything “impossible” of the Defendant. The trial
court orders are affirmed.3
3 We dismiss as moot Defendant’s Motion to Strike Appellee’s Record Supplement because, as
the preceding illustrates, our decision does not require reliance upon the material Defendant requests be stricken.
- 23 - N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC
AFFIRMED.
Judges TYSON and ARROWOOD concur.
- 24 -