             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 Attorney General Michael
      Bulleri, 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.



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        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


        1In various filings in the record, the current owner of the facility is called “Dyna-Diggr,” “Dyna
Diggr,” “Dyna-Digr,” and “Dyna Digr.”

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      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.



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       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).

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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


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             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-

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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.


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               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

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            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


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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



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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,



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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



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(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

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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


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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



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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.



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      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.

                                 i. Standard of Review

      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).

                                         ii. Merits

      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).”



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                                  Opinion of the Court



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.

                                i. Standard of Review

      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



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                                   Opinion of the Court



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.

                                      ii. Merits

      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



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                                   Opinion of the Court



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[.]”



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                                  Opinion of the Court



      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).



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                                        Opinion of the Court



       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.

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                      Opinion of the Court



AFFIRMED.

Judges TYSON and ARROWOOD concur.




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