The general principles of civil liability for conduct which harms a person are that such a person must show a legal injury to a right protected by law, caused by an act of the defendant which the law regards as a wrong. The four theories of tort law most likely to be applied in a case of harm from underground waste disposal are (1) trespass, an intentional invasion of the physical property of the plaintiff; (2) negligence, the causing of harm through failure to use reasonable care to avoid injury; (3) nuisance, the use of property so as to cause unreasonable interference with the use and enjoyment of another's property; and (4) strict liability, imposed without regard to fault upon those who engage in abnormally dangerous activities. The plaintiff's remedies are damages and injunction. The plaintiff will choose that rule and that remedy most suitable to his case, most likely to be sustained by the local court, and easiest to prove. The actor has few defenses other than to attack the theory of the plaintiff for lack of (or lack of proof of) an element of his case.
The new trend in the law is toward “conditional fault” (reflected in the difference between the American Law Institute's Restatement of Torts of 30 years ago and the new Restatement [Second] of Torts), which permits desirable conduct although it carries possibilities of harm, but which requires the actor to pay if harm occurs.
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Underground Waste Management and Environmental Implications
This publication consists of papers based on oral presentations at a symposium of the same name co-sponsored by the United States Geological Survey and the American Association of Petroleum Geologists. A wide range of technical issues are covered, as well as regulatory and liability concerns. Documentation of two areas in Colorado where earthquakes had resulted from subsurface fluid injection set the stage for modern debates regarding possible similar results elsewhere. A wide range of fluid compositions are subject to subsurface waste disposal. The largest volumes are brines separated during the production of oil and gas wells, but acid-water and industrial wastes of all types can be disposed in significant quantities in local areas. Large hydraulic fracture treatments never recover all of the injected fluids, and the chemical additives in the fluid that remains underground can be a concern. The subsurface injection of radioactive waste is a topic for three of the papers. The possible need for sequestration of carbon dioxide was not a significant concern at the time and was not covered, but many of the papers provide insight into the issues related to modern proposals. When fluids are injected under pressure into subsurface aquifers, they interact in numerous ways. The fluids can potentially migrate for long distances and potentially interfere with other uses for the native aquifer fluids. If the aquifer cannot transport all of the fluids away, the buildup in pressure can cause fracturing of the rock. Differences in composition between the injected and native fluids can cause chemical reactions to occur; in some cases these can be desirable in that they can immobilize certain solutes in mineral form. The long-term environmental consequences are a common theme in many of the papers because of the recognition that the disposed fluids would become a permanent fixture in subsurface aquifers and could have long-term consequences for their future utilization.