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As part of the turmoil over whether the pollution exclusion applies to a particular claim, some courts are being asked to decide whether the substance involved in the claim is a pollutant. No definitive interpretation has been offered by the courts, so insureds and insurers cannot absolutely rely on a single definition in each and every pollution claim. However, you should know that some courts are interpreting the definition so as to prevent an overly broad application of the pollution exclusion.

For example, in Pipefitters Welfare Educational Fund v. Westchester Fire Insurance Company, 976 F.2d 1037 (1992), the U.S. court of appeals declared that the terms “irritant” and “contaminant,” when viewed in isolation, are almost boundless, for “there is virtually no substance or chemical in existence that would not irritate or damage some person or property. Without some limiting principle, the pollution exclusion clause would extend far beyond its intended scope and lead to some absurd results.”

In Atlantic Mutual Insurance Company v. McFadden, 595 N.E.2d 762 (1992), the supreme judicial court of Massachusetts found that lead could not be reasonably understood as being a pollutant and, further, that “the exclusion's references to discharges and releases were terms of art in environmental law that clearly implied a drafting intent to limit the exclusion's scope to environmental pollution.”

In Westchester Fire Insurance Company v. City of Pittsburg, Kansas , 768FSupp. 1463 (1991), the U.S. district court held that “a pollutant is not merely any substance that may cause harm…but rather it is a toxic or particularly harmful material that is recognized as such in industry or by governmental regulators.”

So, while there is no universally accepted definition of “pollutant” to offer you guidelines in this area, you should be aware that some courts are looking over the definition with a critical eye, trying to limit its scope. And, as usual, if an insurer is going to deny a claim based on the pollution exclusion, it will be up to the insurer to convince a court that the exclusion applies, and this includes showing that the substance that caused the injury or damage was, indeed, a pollutant.