CAN POLLUTION NOT BE POLLUTION?

Some times, court decisions can be difficult to understand and explain. For example, recently an appellate court in essence held that pollution is not pollution.

Neighbors of a hog confinement facility sued the operators of the facility and owners of land on which hog manure was applied. Plaintiffs complained that odors were a nuisance that were causing loss of enjoyment of their property. The operators' insurance company declined to defend the suit, citing the "pollution exclusion" provision in the operators' umbrella insurance policy.

The Appellate Court held that the pollution exclusion did not apply because the alleged odor pollution was not "traditional pollution." * The Court relied upon a prior state Supreme COurt decision which held that: "Given the historical background of the absolute pollution exclusion and the drafters' continued use of environmental terms of art, we hold that the exclusion applied only to those injures caused by traditional environmental pollution." The Supreme Court did not define "traditional pollution", but found that the accidental release of carbon monoxide due to a broken furnace does not constitute the type of environmental pollution contemplated by the pollution exclusion provision. **

Te Appellate Court stated that "we do not find the hogs, their manure, nor the smells associated with these things constitute traditional environmental pollution." The Court acknowledged that the state Environmental Protection Act deemed odor a contaminant that would constitute air pollution if it unreasonably interfered with the enjoyment of life or property. However, it said, "even if the odors at issue in this case constituted air pollution for purposes of the Act, this does not mean the odors constitute 'traditional environmental pollution.'...Generally speaking, the scope of the things seen as hazardous to the environment, as reflected in environmental protection laws today, is far greater than what wee conclude our supreme court had in mind when it spoke of 'traditional environmental pollution.'"

If odors associated with hog processing do not constitute "traditional pollution", does this mean that odors from a wastewater treatment facility also do not constitute "traditional pollution?" In any case, how can any allegation of a violation of environmental statutes or regulation not be deemed "traditional pollution" when those laws essentially define what is "traditional pollution."? Or does all of this mean that , if sewage odors do not constitute "traditional pollution", then the only basis for challenging odor is through a nuisance theory, not through regulatory air pollution violation?

Some times, court decisions are difficult to understand and explain.

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* Country Mutual Insurance Company v. Hilltop View,
2013 Ill.App.(4th)130124

** American States Insurance Co. v. Koloms,
177 Ill.2d 473 (1997)