POLLUTION EXCLUSION AND LIMITED COVERAGE

(April 2019)

INTRODUCTION

The language in the pollution exclusion in the Insurance Services Office (ISO) Commercial General Liability (CGL) Coverage Forms has been examined closely and has generated a great deal of controversy since it was first introduced in 1973. Court interpretations in various jurisdictions over time vary widely so its original intent has been eroded. Over the years the exclusion has been modified to clarify that it excludes most types of pollution regardless of whether the pollution event is gradual, or sudden. Over the years several important and common-sense exceptions have been added. In addition, there are several endorsements that provide coverage for exposures that the basic coverage form excludes and some that eliminate the exceptions within the coverage form. The review of events that led to the major insurance changes included in the following analysis was initially prepared by Victor B. Levite, San Francisco attorney and resident partner in the California law firm of Barger & Wolen.

FEDERAL LEGISLATION

The sinking of the Torrey Canyon and the Santa Barbara oil spill brought environmental pollution to the forefront of national concern, even though pollution has existed for years as a by-product of industrialization and economic growth. Congress enacted the Resource Conservation and Recovery Act (RCRA) in 1976. It attempts to protect the environment by prohibiting open dumping and by regulating how hazardous solid waste is handled. Regulations under the Act apply to approximately 400 specifically named substances, to other substances that can be ignited, and to corrosive, reactive, explosive, or toxic substances.

Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, also known as Superfund) in 1980. It provides funds for emergency response and cleanup when hazardous substances are released into the environment. The Act provides for direct action by a claimant against an insurance company and imposes strict, retroactive, and joint and several liability.

The Superfund Amendments and Reauthorization Acts (SARA) amended CERCLA in 1986 in many ways, one of which increased the trust fund from $1.6 billion to $8.5 billion.

There are other pertinent federal laws and regulations in addition to the laws that address pollution liability that many states have passed.

ADVERSE COURT DECISIONS

There are many important court decisions that deal with the pollution exclusion and with pollution liability.

An example of a case that enforces the exclusion as intended (representing a distinct minority view) is American States Insurance Company vs. Maryland Casualty Company, 487 F. Supp. 1549, U.S.D.C., E.D. Michigan (1984). In this case, the United States District Court denied insurance coverage in four suits that arose out of National Drum and Barrel Corporation dumping toxic waste materials. It was alleged that the toxic wastes had been dumped continuously since 1966 and caused water contamination. The plaintiffs claimed harm to themselves and to the use of their property. The court held that the release of toxic materials was continuous and not sudden or accidental. As a result, none of the four insurance companies to which National Drum had presented claims were required to defend or indemnify the insured.

Unfortunately for the insurance industry, courts have reached different conclusions in most cases. For example, in the case of Waste Management of Carolinas, Inc. vs. Peerless Insurance Company, 323 S.E. 2d 726 (Court of Appeals of North Carolina, December 28, 1984), the court held that the words "sudden" and "accidental" were ambiguous. It decided that the damages that occurred were neither intended nor expected from the insured’s standpoint. The case involved a suit by the United States Government under RCRA that sought injunctive relief and reimbursement of costs from groundwater contamination. The landfill’s owners sought indemnity and contribution from the insured because of negligence in not preventing hazardous waste being deposited from 1973 to 1979.

REVISED POLLUTION EXCLUSIONS

As a result of the court decisions, ISO revised the pollution exclusion in the 1986 edition. All pollution was excluded, without distinguishing whether it was gradual, sudden, or accidental.

There have been several subsequent revisions. While the most current edition of the CGL Coverage Form does not have an absolute pollution exclusion, ISO defines it broadly to make it as comprehensive as possible and to exclude as many types of potential occurrences as possible. The exclusion does not state that the pollution event must be accidental or gradual. All pollution incidents are excluded, other than the exceptions reviewed and addressed below.

POLLUTANTS DEFINED

The first step is to define pollutants. The definition ISO uses in all its coverage forms and policies attempts to name as many potential pollutants as possible without being unreasonable. Pollutants are any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. However, these are not the only pollutants because ISO uses the word “including” in the definition. Waste includes materials to be recycled, reconditioned, or reclaimed.

WHAT IS EXCLUDED AND WHERE

Insurance does not apply to pollution at or from any premises, site, or location now or ever owned, occupied by, or rented or loaned to any insured.

Coverage does not apply at or from any location or site used to handle, store, dispose of, process, or treat waste. This applies regardless of who was involved with the waste-related activity.

There is no coverage for pollutants that were transported, handled, stored, treated, disposed of, or processed as waste. This applies only if the insured or someone the named insured is legally responsible for was involved with the waste-related activity.

There is no coverage at or from any location or site where any insured is performing operations if it brings the pollutants to the location or site as a part of those operations. This also applies to contractors and subcontractors working for any insured and bringing pollutants to the site.

There is also no coverage at or from any location or site where any insured performs operations that involve pollutant testing, monitoring, cleaning up, removing, containing, treating, detoxification, neutralization, response, or assessment in any way. This exclusion also applies if contractors or subcontractors that work on an insured's behalf perform these operations. Coverage does not apply to any loss, cost, or expense that arises out of any request, demand, order, or statutory or regulatory requirements the insured must comply with regarding the effects of pollutants. These may involve the insured or others testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralizing, responding to, or assessing those effects.

Coverage does not apply to any loss, cost, or expense that arises out of any claim or suit by or on behalf of a governmental authority for damages due to testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralizing, responding to, or assessing the effects of pollutants in any way. This does not apply to any liability for property damage the insured would have even if any of the above hadn’t been required or subject to a government authority.

SUDDEN OR ACCIDENTAL

All pollution events are excluded, except those covered because of one of the exclusion’s exceptions. This means events that occur suddenly or accidentally in addition to events that occur gradually and over time are not covered.

EXCEPTIONS TO THE POLLUTION EXCLUSION

Pollution from building heating, cooling, dehumidifying equipment or equipment used to heat water

This exception covers bodily injury sustained inside a building and caused by smoke, fumes, vapor, or soot from equipment used to heat, cool, or dehumidify the building or equipment used to heat water that the building's occupants and their guests use.

Coverage applies only to injuries sustained inside the building. It does not apply if the same events release smoke, fumes, vapor, or soot outside the building that injures a person passing by.

Note: This exception has grown over the years. It was first added to except only heating equipment such as furnaces. It was then broadened to except cooling equipment and then dehumidifying equipment. The most recent addition is equipment that heats water. However, this is a limited exception because the only heating equipment that is excepted is that used to provide hot water for building occupants and guests. This would mean that heating equipment used to provide heat or used in manufacturing process would not be excepted.

Hostile fire

This exception covers bodily injury or property damage caused by or that arises out of heat, smoke, or fumes from a hostile fire.

Note: Black's Law Dictionary defines a hostile fire as one that becomes uncontrollable or breaks out from where it was intended to be and becomes a hostile element.

Specific operating fluids released by contractors at job sites

This exception covers bodily injury or property damage that arises out of fuels, lubricants, and other operating fluids used in mobile equipment in their normal operations on the job site escaping. However, this is limited to operating fluids that escape from the vehicle part or receptacle designed to hold them. This exception does not apply to intentional release of operating fluids or such fluids brought to the job site to intentionally release them.

Note: Older editions of the CGL Coverage Form did not have this exception. It applies to only fluids needed to properly operate mobile equipment and not to any other liquid pollutants.

Pollution from materials required to be brought into a building

This is a difficult exception and must actually be provided in two different parts of the exclusion.

This actual exception (d) (ii) covers bodily injury or property damage sustained inside a building caused by gases, fumes, or vapors released from materials brought into the building. The materials must be used in conjunction with operations performed by the named insured or contractors or subcontractors that work on its behalf.

Examples of these materials are paint, cleaning solvents, chemical treatments, carpet glue, or tile glue that the insured, a contractor, or a subcontractor brings in to repair or service the building.

There is a problem with this exception. If the owner of the premises is an additional insured, this exception would not apply because under (1) (a) pollution losses from a premises that is owned, rented, etc., to an insured are not covered. This means that as soon as the owner is added, the contractor loses this exception. This was clearly not what was intended so an exception (1) (a) (ii) was added so that when the owner, renter, occupier etc. of the location is an insured only because it is an additional insured of the contractor that is working at that location, that location is excepted.

Example: Jasper Painting is hired to paint the interior of the Harvest Hotel. Jasper brings all the paint necessary and stores it in the basement. The paint emits fumes that are circulated throughout the hotel causing several guests to complain and some must even be hospitalized. Jasper Painting’s CGL included an endorsement that automatically added clients as additional insured. Because of the (1) (d) (ii) exception Jasper has coverage for the pollution loss. However, because Harvest is an additional insured, under (1) (a) there would be no coverage until the (1) (a) (ii) exception is applied.

EXCLUSION ENDORSEMENTS

There are three Commercial General Liability (CGL) endorsements that make the pollution exclusion more absolute.

CG 21 49–Total Pollution Exclusion Endorsement

This endorsement replaces Section I–Coverage A–Bodily Injury and Property Damage Liability, Paragraph 2. Exclusion f. Pollution. It is identical to Exclusion f. Pollution, but it removes every exception.

CG 21 55–Total Pollution Exclusion with a Hostile Fire Exception

CG 21 65–Total Pollution Exclusion with a Building Heating, Cooling, and Dehumidifying Equipment Exception and a Hostile Fire Exception

This endorsement replaces Exclusion f. under Paragraph 2. Exclusions of Section I Coverage A Bodily Injury and Property Damage. It is replaced with a total pollution exclusion with only two exceptions. It does not apply to injury from any smoke, fumes, vapor, or soot that building heating, cooling, or dehumidifying equipment releases. It also does not apply to injury or damage from heat, smoke, or fumes that result from a hostile fire.

There are two Products/Completed Operations (PCO) endorsements that make the pollution exclusion more absolute.

CG 21-98–Total Pollution Exclusion Endorsement

This endorsement replaces the pollution exclusion in the Products/Completed Operations Liability Coverage Form with a total pollution exclusion. It is similar to CG 21 49–Total Pollution Exclusion Endorsement.

CG 21 99–Total Pollution Exclusion for Designated Products or Work

This endorsement is identical to CG 21 98–Total Pollution Exclusion Endorsement except that it applies to only the product or work entered on the endorsement schedule. All other work or products remain subject to the policy level pollution exclusion.

There are four operation-specific pollution-related CGL endorsements and one operation-specific pollution-related PCO endorsement.

CG 22 64–Pesticide or Herbicide Applicator–Limited Pollution Coverage

This broadening endorsement modifies the Pollution exclusion to not apply if the herbicide application operations described on the endorsement schedule are performed according to all applicable standards of any governmental entity’s laws or requirements.

CG 22 73–Exclusion–Oil or Gas Producing Operations

This endorsement restricts coverage. It replaces paragraph (1) (d) of the pollution exclusion. It excludes all pollution coverage at sites, locations, or premises where operations are being performed. There are no exceptions.

CG 22 78–Hazardous Material Contractors

This endorsement broadens coverage. It modifies the Pollution exclusion for contractors that remove, replace, repair, enclose, or encapsulate hazardous material or substances at a building or structure. It deletes paragraph (1) (e) that excludes pollution coverage at locations where such operations take place with respect to these contractors and activities.

CG 22 93–Lawn Care Services–Limited Pollution Coverage

This endorsement broadens coverage. It provides an exception to the Pollution exclusion so that pollution coverage applies when an insured applies herbicides or pesticides to lawns. It includes all herbicides and pesticides, even those that require licenses and permits.

CG 28 12–Pesticide or Herbicide Applicator–Limited Pollution Coverage

This endorsement broadens coverage. It is used with PCO to provide limited pollution coverage for pesticide and herbicide applicators. However, coverage applies only if they meet and comply with all federal, state, or local government statutes, ordinances, regulations, or licensing requirements that apply to such operations.

POLLUTION COVERAGE BUY-BACK ENDORSEMENTS

There are five optional CGL endorsements that provide "buy-back" coverage for parts of the pollution exclusion. Each requires an additional premium charge.

CG 04 22–Pollution Liability Coverage Extension

This endorsement provides complete pollution liability coverage by deleting the pollution exclusion. However, it does not cover cleanup costs.

Note: This endorsement is not used very often because it provides such broad pollution liability coverage. Only a few insurance companies write pollution liability insurance coverage and do so using separate coverage forms or policies.

CG 04 28–Pollution Exclusion–Named Peril Limited Exception for a Short-Term Pollution Event

This endorsement amends the pollution exclusion by providing coverage for pollution caused by or that results from specific causes of loss the endorsement lists. The pollution event must begin during the policy period, be definite in place and time, end within 48 hours after it began, and not originate in an underground storage tank for coverage to apply.

CG 04 29–Pollution Exclusion–Limited Exception for a Short-Term Pollution Event

This endorsement is almost identical to CG 04 28 except that event does not have to begin with a specifically named cause of loss.

CG 04 30–Pollution Exclusion–Limited Exception for Designated Pollutant(s)

This endorsement amends the Pollution exclusion. It provides coverage for bodily injury or property damage that arises out of any release of the pollutants listed on the endorsement schedule while used in conjunction with the insured's operations.

CG 24 15–Limited Pollution Liability Extension Endorsement

This endorsement buys back some pollution coverage by amending the exclusion. Coverage is limited to premises not used to handle, store, dispose of, process, or treat wastes. It still excludes any pollution that results from any storage tanks or containers, including ducts and piping below or partially below ground. A separate aggregate limit must be entered on the endorsement schedule.