Kinzua Resources, LLC v. Dep't of Environmental Quality

ORS 459.268 states that “…under ORS 459.205 or, if the person who holds or last held the permit fails to comply with this section, the person owning or controlling the property on which the disposal site is located, shall close and maintain the site according to the requirements of this chapter….” (Emphasis added.) The Supreme Court defined “owning or controlling” as “possessing legal authority over the land which the landfill is located.” Kinzua Resources v. DEQ, 366 Or 674, 468 P3d 410 (2020) (Kinzua III).

On remand from the Supreme Court, the Court addressed an argument by Peti­tioners that was not addressed in Kinzua Resources v. DEQ, 295 Or App 395 (2018) (Kinzua I), adh’d to on recons, 296 Or App 487 (2019) (Kinzua II), following the framework and interpretation of ORS 459.205 and ORS 459.268 laid out by the Supreme Court in Kinzua III. ORS 459.268 states that “…under ORS 459.205 or, if the person who holds or last held the permit fails to comply with this section, the person owning or controlling the property on which the disposal site is located, shall close and maintain the site according to the requirements of this chapter….” (Emphasis added.) The Supreme Court defined “owning or controlling” as “possessing legal authority over the land which the landfill is located.” Kinzua III. The Supreme Court ordered this Court to consider whether the record was sufficient to show that Petitioners had “control” over the site as required by the statute. The Court found that there was sufficient evidence on the record that Petitioners had control because they had membership and “rights in the management and conduct” in Kinzua, LLC. Therefore, the Environmental Quality Commission's decision to impose fines against petitioners was supported by substantial evidence.  Affirmed.