The pollution exclusion continues to be enforced in non-“traditional environmental” circumstances.  On Aug. 30, a Colorado judge ruled that the exclusion prevents a restaurant from relying on liability insurance to pay for a lawsuit by sewer workers exposed to toxic gases that formed from cooking oil and grease that the restaurant improperly disposed of in the sewers. (Mountain States Mutual Casualty Co. v. Tim Kirkpatrick d/b/a Hog’s Breath Saloon & Restaurant, No. 06-221, D. Colo.)

Two workers were overcome by hydrogen sulfide gas while cleaning municipal sewers.  They claim that nearly five feet of oil and grease accumulated in the manhole into which the sewer line emptied.  Hydrogen sulfide gas, a highly toxic gas, forms naturally from the breakdown of organic material and was trapped in the manhole.  The workers claim that they were exposed to deadly amounts of hydrogen sulfide gas while working in the manhole.

U.S. Judge Walker D. Miller of the District of Colorado decided that the substances discharged into the sewer by the restaurant are waste products and constitute a “contaminant” under dictionary definitions and the facts of the case and, thus, a “pollutant” under the policy.  He said the restaurant’s disposal could constitute the discharge, dispersal, release, or escape of pollutants.  He rejected the argument that toxicity is required for a substance to be considered a “pollutant.”

“While clean cooking oil may not be toxic when used as a food, it would still be considered a contaminant when introduced in large quantities into drinking water or other places it does not belong.  Moreover, it appears to be regulated in that, according to the complaint in the Underlying Lawsuit, city ordinances require grease traps and other preventative measures be taken to prevent its release into the environment,” he noted.