.

LANGTRY, Judge.

    Acting by and through the Department of Environmental Quality (DEQ), the State of Oregon initiated this injunctive proceeding seeking to compel compliance by defendant corporation with the provisions of the Environmentally Hazardous Wastes Statutes (ORS 459.410 through 459.690), and to have the "disposal site" owned by the defendant declared a public nuisance. The circuit court ruled in its decree:

"1. That the Defendant cease and desist from adding any further waste to its disposal site at Alkali Lake,
"2. That Plaintiff's request that Defendant be required to apply for a license to operate a waste disposal site is denied,
"3. That Plaintiff's request that Defendant be required to abate the public nuisance located on its property located at Alkali Lake is denied."

    The state has appealed from the parts of this decree unfavorable to it, namely, Paragraphs (2) and (3).

    Evidence, elicited at the hearing below, shows that in 1969 defendant purchased approx-imately 6,000 acres of the Alkali Lake bed located in southeastern Oregon after its president completed some three years of study concerning a "safe disposition of pesticide wastes. Preliminary research had indicated that these waste materials could be successfully biodegraded into the soil, and that the most preferable site for such an operation would be one situated in a remote area where the soil was alkaline and where spillage would not contaminate a watershed. Having acquired the Alkali property which met essentially all of these requirements, Chemical Waste began early in 1969 - pursuant to a contract with Rhodia, Inc., of Portland - to transport residue materials to that tract. These materials were contained in 55-gallon steel drums which were themselves stored within a ten-acre plot of the Alkali property.

    In conjunction with representatives of Oregon State University defendant then secured a federal grant of money to continue with further research relating to the degradation of the wastes.

    Throughout this organizational period defendant cooperated with Oregon's Department of Agriculture in obtaining all permits or licenses required to maintain a disposal site as planned.

    In 1971 the legislature passed and the Governor signed Oregon Laws 1971, Ch. 699 +++ creating the Department of Environmental Quality which was to assume jurisdiction over the control of "environmentally hazardous wastes," the proposed definition of which encom-passed those materials present at Alkali Lake. After considering the impact of this new law, the directors of Chemical Waste decided that its anticipated operations were no longer feasible and determined that the biodegrading of the materials acquired pursuant to its contract with Rhodia would have to be completed before the terms of that law became applicable. Steps were then taken to that end, including the fencing of a 400-acre area to be used for biodegrading and the installation of vats, mixing machinery and electricity.

    Although the specific terms of the Act indicated that any preexisting disposal site could be maintained without a license from the DEQ until 60 days after the rules and regulations govern-ing the form and contents of license applications were adopted, Chemical Waste was notified by the DEQ in December of 1971 - some three months before any such regulations were, in fact, formulated - that no additional waste materials could be brought onto the Alkali site and that further disposal of materials already present was prohibited. As a result of this action, defendant terminated its operations, paid all creditors, and transferred the assets of the corporation - with the exception of the ten acres upon which the barrels containing the waste materials were stored - to the stockholders in exchange for their stock. At the time this suit was initiated by the state, therefore, Chemical Waste was a corporate "shell," with the ten-acre parcel con-stituting its sole asset.

    After considering these facts, the circuit court concluded that it could not "decree the impossible," noting that

"* * * A $5,000 license fee, together with a cash bond of undetermined amount satisfactory to plaintiff, should now in some manner be raised and spent by defendant which is now a defunct corporation and whose untimely demise and the reason there-fore has been above mentioned (referring to the DEQ's action in December which foreclosed any continued operations at Alkali Lake).
"In effect, the State torpedoed and sank the vessel which it now contends should complete the voyage and deliver the cargo....
"* * *.
"The condition existing at the site does constitute a nuisance, but a nuisance that was allowed to grow with the permission and help of the State. It is true that estoppal does not lie as against the State, but certainly the State will not be allowed to complain in a court of equity where the condition of which it now complains was aided and abetted by the State itself and it would now, after disabling the defendant, ask this Court to require the defendant to abate the nuisance."

ÝÝÝ The decree quoted above was then entered.

    We are directed by ORS 19.125(3) to try "anew upon the record" this suit and to make our own independent study of the record and to arrive at our own conclusions. Consideration of the evidence disclosed by this record as well as issues involved leads us to the conclusions that (1) contrary to the finding of the lower court the storage of the waste materials on the defendant's Alkali Lake property does not constitute a public nuisance, and (2) because those waste materials fall within the statutory definition of "environmentally hazardous" materials (ORS 459.410(6)), the defendant is currently operating a "disposal site," the maintenance of which both the defendant and the state must comply.

"The term 'nuisance' is incapable of an exact and exhaustive definition which will fit all cases, because the controlling facts are seldom alike, and because of the wide range of subject matter embraced under the term.Ý There is no exact rule or formula by which the existence of a nuisance may be determined, but each case must stand on its own facts and special circumstances." (Footnotes omitted.) 58 Am.Jur.2d 553-54, Nuisances Sec. 1.

    Acknowledging their essentially amorphous character, the Supreme Court of Oregon has declined to "define" the elements of either private - affecting an individual or limited number of individuals - or public - those prejudicial to the health, comfort or safety of citizens at large - nuisances. In E. St. Johns Shingle Co. et. al. v. Portland, 195 Or. 505, +++ (1952), the court found this analysis to be persuasive:

"The law of nuisance affords no rigid rule to be applied in all instances. It is elastic. It undertakes to require only that which is fair and reasonable under all circumstances * * *." +++
and quoted with approval from Schoot v. Appleton Brewery Co., 205 S.W.2d 917, 920 (Mo. App.1947):
"* * *What is a reasonable use and whether a particular use is a nuisance * * * depends upon the facts of each particular case, such as location, character of the neighborhood, nature of the use, extent and frequency of the injury, the effect upon the enjoyment of life, health, and property, and the like. The use of property in one locality and under some circumstances may be lawful and reasonable, which under other circumstances would be unlawful, unreasonable, and a nuisance. 39 Am.Jur. pp. 298, 299, Sec. 16 * * *." +++

ÝÝÝ In Atkinson et. al. v. Bernard, Inc., 223 Or. 624, +++ (1960), the court held:

"* * * Each case then must be decided on its own peculiar facts, balancing the interests before the court.
* * *.
"* * * The flexibility of nuisance law enables the trial judge to take into consideration * * * all relevant factors which will assist him in balancing the interests of the parties before the court in light of relevant public interest." +++

    Here, the "nuisance" complained of conceivably falls into only that category of nuisance defined in Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 345, +++ (1948), as

"* * * (c)ases involving harm to human comfort, safety or health by reason of the maintenance by a defendant upon his land of noxious or dangerous instrumentalities * * *."

Although the court below gave no indication of the grounds upon which its conclusion that "(t)he condition existing at the site does constitute a nuisance * * *" was based, it is evident that the decision was necessarily founded on the determination that the site is harmful to "human comfort, safety, or health."

    While, as we note below, defendant has been "operating" the site in violation of the Environmentally Hazardous Wastes Statutes from the time they became effective in early 1972, that continuing violation does not require a finding that the site constitutes a public nuisance. We find nothing in ORS 459.410 through 459.690 declaring such a site to be a nuisance per se. These statutes do direct tight control of the operation or maintenance of such sites and provide sanctions to be imposed where compliance is lacking; they do not, however, serve to make that a nuisance which is not so in fact.

    The cases from which we have quoted lead to the conclusion that the peculiar locations and surroundings involved in the cases are of great significance and may in many cases by determinative of whether any nuisances exist. While reversing a conviction under the now abandoned "nuisance statute" (formerly ORS 161.310), the court in State v. Anderson, 242 Or. 457, 461-462, +++ (1966), noted:

"* * * The transportation of explosives on the public highways is not per se a public nuisance, though it may be such in particular circumstances * * *: 'The manufacture, keeping or storing of explosives is not per se a public nuisance. * * * Whether or not such acts do constitute a nuisance depends upon the surrounding circumstances such as locality, quantity or manner of manufacture or storage.' * * *"

    In York et. ux. v. Stallings et. al., 217 Or. 13, 20-21, (1959), the court concluded:

"It is well settled that a sawmill is not a nuisance per se. * * * It is clear, however, that a sawmill may become a nuisance by reason of the character of the neighborhood in which it is situated or the manner in which it is operated * * *.

    It is undisputed that the ten-acre storage site involved here is located amidst the high desert of eastern Oregon, Some three miles from the nearest "residence or farm or anything", and some two to three miles from the nearest public road.

    The state alleges, however, that in spite of the site's remote location it should be condemned as a nuisance to the public on the ground that there are presently dangers of harm which may result from (1) human or animal contact with the waste materials, (2) contamination of water in the Alkali Lake Basin, and (3) an interference with the public comfort caused by odors emitting from the site.

    In light of the fact that the entire ten-acre site is surrounded by a trench and enclosed by a woven-wire, "stock-tight" fence topped with three lines of barbed wire, kept locked at all times, the first, and probably the second, of the "dangers" alluded to by the state do not appear to be substantial. With reference to the second, much testimony was introduced below relative to the effect of heavy rainfall upon the disposal site where many of the steel drums have deteriorated to the point of being less than water tight. The point of that testimony appears to have been to suggest that such rainfall might produce a "run-off" capable of contaminating water sources in the area. Apart from the facts that the possibility of a rainfall substantial enough to cause such a run-off is extremely remote, that the ten acres is surrounded by a trench and that the wastes in the drums are about 90 percent solid, the evidence also indicates that the site is located within the "sump" or a 30 by 35 mile sink into which all surface drainage moves and that the only potable water to be found in the entire basin - 99 percent of which is owned by the former stockholders of Chemical Waste - is located on private property and enclosed by a fence with locked gates designed to deter public use.

    Although the record includes some reference to public complaints concerning the presence of a "phenolic" odor characteristic of the materials stored on defendant's land, additional testimony revealed that there was no evidence that the "source" of the offensive odors had ever been traced to the site and may well have been due to the fact that roadside weeds and "many hundreds of acres of sagebrush * * *" unassociated with defendant's property had been sprayed with 2,4-D which produces an identical distinct odor. Testimony did, in fact, indicate that the odors associated with the storage site extended for a distance of no greater than one-fourth mile. In light of the fact that the nearest public road or habitation is some three miles from the storage location, this evidence tends to minimize the possibility that the site presently causes any public discomfort.

    Taken as a whole this record does not indicate that defendant's storage site constitutes a nuisance at this time.