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

- 2 -

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. 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 3 -

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 postclosure 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.”
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 4 -

In WASCO I, this Court held that Defendant was liable for securing a postclosure 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.
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 5 -

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). 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 6 -

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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 7 -

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-
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 8 -

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 postclosure 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. 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 9 -

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 postclosure 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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 10 -

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 postclosure 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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 11 -

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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 12 -

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, 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 13 -

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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 14 -

(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 costeffective and protective manner; reorganize the hazardous 

waste generator regulations to make them more userfriendly 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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 15 -

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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 16 -

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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 17 -

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. 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 18 -

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).” 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 19 -

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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 20 -

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 
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 21 -

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[.]”
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 22 -

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 DynaDiggr’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 DynaDiggr’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).
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 23 -

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.
N.C. DEP’T OF ENV’T & NAT. RES. V. WASCO, LLC

Opinion of the Court

- 24 -

AFFIRMED.

Judges TYSON and ARROWOOD concur.