When is an Atmospheric Gas a Pollutant? A District Court Answers: When it is Like Carbon Monoxide

When is an Atmospheric Gas a Pollutant? A District Court Answers: When it is Like Carbon Monoxide

June 4, 2009 18:50
by J. Wylie Donald

We have written here before how carbon dioxide, ubiquitous and naturally occurring, should not be considered a pollutant. (See June 27, 2008 Blog.)  A federal court in Texas recently considered in the context of a hazardous material exclusion another gas found naturally in the atmosphere: argon. In Colony National Insurance Company v. Specialty Trailer Leasing, Inc., Case 2:09-cv-00005-J, the Northern District of Texas concluded that argon involved in an industrial asphyxiation constituted a pollutant within the meaning of a hazardous material exclusion in a general liability policy. Accordingly, coverage for the insured was denied on a motion for summary judgment.

In the case, three workers were asphyxiated in a cargo hold when argon from the insured's "tanktainer" allegedly leaked out and displaced the air the individuals needed to breathe. The insured argued that "argon gas, being a naturally-occurring element present in the air we breath, is not a pollutant." Order at 2 (June 2, 2009). The insurer felt otherwise and asserted that argon was a "pollutant" because it was a "solid, liquid, gaseous or thermal irritant or contaminant, including vapor, soot, fumes, acids, alkalis, chemicals and waste." Id.

The court agreed with the insurer, relying primarily on a Fifth Circuit decision addressing a release of carbon monoxide. Order at 5 (citing Nautilus Ins. Co. v. Country Oaks Apts., Ltd., 2009 WL 1067587 (5th Cir. 2009)). In finding support, the district court stated: "The question before the Fifth Circuit, much like the question before this Court, is whether a naturally appearing inert gas is a pollutant for the purposes of an insurance policy exclusion."

We question this analysis. High school chemistry teaches us that argon is an inert gas. Carbon monoxide never is classified as such. Further, as is apparent from a review of Nautilus, the appropriate analysis is whether argon constitutes an irritant or contaminant. The Fifth Circuit concluded that carbon monoxide was an irritant because an irritant is a "substance that produces a particular effect, not one that generally or probably causes such effects." Nautilus at *4 (citation omitted). Accordingly, the appropriate analysis is whether argon produces a particular effect (and, we would add, the effect must be biological to constitute irritation). That is a nice question and one the Colony National court did not acknowledge. As an inert gas, argon is unlikely to produce any effect. What produces the effect is the absence of oxygen, not the presence of argon. Whether such a circumstance is the legal equivalent of "irritant," we leave for further analysis, which the district court did not do.

We will expect to see Colony National cited by insurance companies for the proposition that a naturally-occurring gas (such as carbon dioxide) can be a pollutant within the meaning of an insurance policy's pollution exclusion. Even if one ignores the glaring differences between Colony National's asphyxiation in an enclosed space by an industrial gas and the alleged and attenuated indirect effects to the environment (such as are alleged in Kivalina v. ExxonMobil) of a naturally-occurring atmospheric constituent at levels well within the geohistorical record (such as carbon dioxide), Colony National is a weak reed on which to rest the insurer's argument. The irritant/contaminant showing must be made and Colony National does not provide that analysis.

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