Offensive Sewage Odors were Recently Held to be Pollutants and Fell Within an Insurance Pollution Exclusion

On Behalf of | Oct 28, 2016 | Firm News

The South Carolina Court of Appeals recently held that offensive odors from sewage could be classified as fumes or gasses for purposes of a pollution exclusion. In South Carolina Ins. Reserve Fund v. East Richmond County Public Service District, 2016 WL 1125810 (S.C. App., 3/23/16), the Court held that a pollution exclusion applied to a homeowner’s negligence and trespass claims brought against a public service district that was responsible for releasing offensive odors from a sewage force valve. In reaching this decision, the Court noted that the exception to the exclusion for sudden and accidental releases did not apply to expected and necessary regular discharges from a sewage force valve.

Applying the plain and ordinary meaning of “fumes,” the Court determined that the pollution exclusion applied because the odors at issue could properly be classified as fumes or gasses. The term “fumes” included irritating or offensive gas and the sewage omission were encompassed within that meaning.

In finding that the discharges did not fall within the “sudden and accidental” exception to the exclusion, the Court found that the district knew that the operation of the air release valve, which omitted the odor, was part of the essential operation of the sewer line which operated to prevent the line from exploding. The valve’s release of the odors was both an expected and necessary function of the line’s normal operation and therefore could not be sudden and accidental.

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