Professor Prosser, in his treatise on torts, states that "the law of torts . . . is concerned with the allocation of losses arising out of human activities."¹ In the hazardous waste field, the potential for loss is very serious. Tort liability falls into two general areas. The first property damage associated with release of pollutants into the environment through ground and surface water, soil, and air transport. The second, victim compensation, has become the topic of considerable debate and study. When talking about the various tort theories, I must caution that property damage is more easily discovered and proven than personal injury. Even though property damage can often take as long to develop as injury to health, as with the gradual permeation of the soil by hazardous chemicals, it is far easier to establish. We will talk later of the specific barriers to victim compensation that arise under traditional tort theory.

Theories of tort liability applicable in the hazardous waste context include negligence, nuisance, trepass, and strict liability. We are all aware of the traditional elements of negligence theory. Failing to honor a standard of conduct (usually the care attributable to a reasonable person) must first be established. Then, it must be shown that as a result of this failure to live up to a reasonable standard of conduct, injury has resulted. In addition to the simple causal connection just described, proximate cause, or how the injury resulted from the failure to act, must also be proven. This is the most difficult element to satisfy in personal injury cases.