## Facts

- Property owners near BP Chemicals’ Lima, Ohio plant alleged BP injected hazardous waste byproducts deep underground and that the injectate migrated laterally beneath their land.
- BP disposed of waste through deepwell injection thousands of feet below the surface under nonporous rock layers.
- Plaintiffs sued for trespass, nuisance, negligence, strict liability, and fraudulent concealment, seeking injunctive relief and substantial damages.
- BP operated under Ohio EPA permits issued under R.C. Chapter 6111, and the U.S. EPA had granted a “no migration” determination.
- Plaintiffs asserted subsurface ownership was complete and that any unauthorized subsurface entry constituted trespass even without proof of damage.

## Issues

1. Whether a landowner may recover for trespass based solely on deep-subsurface migration of injected fluids beneath the land, without proof of physical damage or actual interference with the landowner’s reasonable and foreseeable subsurface use.
2. Whether operating under valid environmental permits and a federal “no migration” determination automatically bars common-law tort liability.

## Decision

- The Supreme Court of Ohio affirmed judgment for BP.
- The court held subsurface property rights are not absolute; they protect against invasions that actually interfere with the owner’s reasonable and foreseeable subsurface use.
- The court held no actionable subsurface trespass exists absent physical damage or actual interference with such reasonable and foreseeable use.
- The court rejected the view that regulatory authorization alone immunizes conduct from common-law claims, citing statutory preservation of common-law and equitable remedies.

## Legal Principles

- A subsurface trespass claim based on indirect, deep underground migration requires proof of physical damage or actual interference with the landowner’s reasonable and foreseeable use of the subsurface.
- Subsurface ownership does not confer an absolute right to exclude all deep subsurface intrusions; exclusion rights are bounded by reasonable and foreseeable use.
- Environmental permits and regulatory approvals do not, by themselves, extinguish common-law causes of action; statutory schemes may preserve private and equitable remedies.

## Conclusion

Ohio recognizes subsurface trespass only when a deep underground invasion causes physical damage or actually interferes with the owner’s reasonable and foreseeable subsurface use; mere alleged presence of injected fluids beneath land, even if unauthorized, is insufficient, and regulatory compliance does not automatically preclude tort claims.


Chance v. BP Chems., Inc., 77 Ohio St. 3d 17, 670 N.E.2d 985 (Ohio 1996)