specially concurring.
I concur in the result reached by the majority. However, I do not agree that the complaint states a cause of action against the defendant Mann independently of the question of damage. Exhibit “A” attached to the complaint contains the following:
ÍÍ# # # $ *
“Accordingly, the State of Oregon, acting by and through the Department of Agriculture and the Department of Environmental Quality, pursuant to law, directs you immediately, until further notice to you, to comply with the following requirements:
“2. Bring handling, surveillance and security of existing waste materials at the Alkali Lake Storage Site into strict compliance with the conditions of the permit issued by the State Department of Agriculture to Chemical Waste Storage and Management, Inc., 418 SW. Washington, Portland, Oregon, effective through June 30, 1971, including the pertinent conditions of the £ Outline of Operating Criteria for Loading, Transport, Inventory and Ultimate Disposition of Industrial Residues of Pesticides and other Hazardous Chemicals,’ dated April 17, 1969, prepared by the Environmental Health Sciences Center, Agricultural Experiment Station, Oregon State University, Corvallis, Oregon. Copies of these documents are attached hereto as Exhibits £A’ and £B’ and hereby made a part hereof.
* * (Emphasis supplied.) *
*527Oregon Laws 1971, ch 699, Section 2,① generally recognizes that a license must be obtained to dispose of environmentally hazardous waste and to operate a disposal site. Section 2a,② however, provides:
“Section 2 of this Act does not apply to any person operating a disposal site on the effective date of this Act under a permit or license issued by any agency of this state until a license application therefor has been acted upon by the commission pursuant to this Act. If the operator of such a disposal site desires to continue to operate the disposal site, he must apply for a license under this Act within 60 days after the commission has adopted rules and regulations governing the form and contents of applications. If the license is refused, the licensee must cease operations within a time set by the commission that allows reasonable opportunity for the licensee to take such steps for the security or disposition of stored material as the commission deems necessary. The commission shall not direct removal of stored material unless an alternate site has been designated as suitable for disposal of it.”
The effective date of ch 699 is June 30, 1971. The license issued to the plaintiff by defendant Mann as Director of the State Department of Agriculture remained in full force and effect. It is to be noted that ch 699 repealed OES 634.330 (2), which would otherwise have terminated that license issued by the defendant Mann.
Chapter 699, Section 2a, continued the operating authority of the plaintiff, contingent upon other provisions of the Act.
The challenged order issued by defendants Day *528and Mann in the portions quoted above required the plaintiff to bring its activities into compliance with the permit issued by the defendant Mann. I believe the defendant Mann had the right, and indeed the duty, to join in such an order, and therefore conclude that the complaint fails to state any cause of action against him also. This follows for the same reasons that the majority have set forth as supporting the dismissal of the complaint against the defendant Day.
ORS 459.510.
ORS 459.520.