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Richardson v. Nationwide Mutual Insurance Company6/12/2003
cturing byproduct, or an element of a waste stream is irrelevant."
B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1200 (2nd Cir. 1992). Similarly, potentially responsible parties under CERCLA may include individuals, municipalities, universities, and other entities besides industrial polluters. Id.; see also United States v. Alcan Aluminum Corp., 990 F.2d 711, 725 (2nd Cir. 1993) (holding that Cornell University may be liable under CERCLA). Moreover, " uantity or concentration [of the hazardous substance] is not a factor either." B.F. Goodrich, 958 F.2d at 1200. " ven minimal amounts of pollution" are within CERCLA's purview. Alcan Aluminum, 990 F.2d at 720.
The majority is also mistaken when it asserts as a fact that the words "smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste" - the non-exclusive examples included in the definition of "pollutants" used in the absolute pollution exclusion - "collectively bring to mind byproducts of industrial pollution." Ante at 24. The majority's wish is the father of that thought. It is equally true that the words in question may "bring to mind" byproducts of agricultural pollution, municipal pollution, vehicular pollution, and virtually any other form of pollution - easily including pollution from improperly maintained furnaces or other causes (notably including poor waste disposal practices) in apartment, office, or other buildings of every description.
It is not a "coincidence," ante at 30, that the words used in the pollution exclusion are words commonly used elsewhere in connection with pollution, including in environmental legislation. As the heading of the exclusion states, its subject is pollution, so naturally its drafters employed words that are associated with that subject such as "release," "escape," "dispersal," and "contaminant." But these words are not "terms of art" connoting only a specific type of pollution. See National Elec. Mfrs. Ass'n v. Gulf Underwriters Ins. Co., 162 F.3d 821, 825 (4th Cir. 1998) (noting that the pollution exclusion "contains neither technical terms nor terms of art"). The terminology of the absolute pollution exclusion is as appropriate for discussing non-industrial indoor air pollution as it is for discussing industrial pollution or whatever else the majority may consider "traditional" environmental pollution. The drafters of the absolute pollution exclusion could have used words of limitation to exempt non-industrial indoor air pollution from its purview, but they did not do so. The implication is that they did not include the corresponding limitations either.
When the words of the absolute pollution exclusion are given their plain meaning, the exclusion is broad but it is not ambiguous. It applies unambiguously to all forms of environmental pollution, whether in or out of doors, on or off the insured's premises, industrial or non-industrial, large-scale or small-scale, traditional or novel. Ironically, it is the majority that renders the exclusion ambiguous when it rejects its plain meaning in favor of a specialized meaning that is supposedly (if not actually) drawn from the complex body of the nation's environmental laws and regulations. It is not helpful to be told that the pollution exclusion refers only to "traditional" polluters, ante at 48, or that the exclusion does not apply to "everyday activities gone slightly, but not surprisingly, awry." Ante at 34. With respect, formulations such as these are so vague as to be meaningless. The interpretive burden they will impose on policyholders, insurance companies, claimants and courts is staggering.
Consider Doerr v. Mobil Oil Corp., 774 So.2d 119 (La. 2000), one of the leading cases that the majority expressly cho
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