“Septage” Is Unambiguously a Pollutant, Wisconsin Appellate Court Holds

An appellate court in Wisconsin, affirming a trial court’s decision, has ruled that “septage” was “unambiguously” a pollutant within the meaning of various insurance policies’ pollution exclusions. 

The Case 

A lawsuit against the insureds alleged that they had contaminated well water by over-spraying septage – a combination of water, urine, feces, and chemicals – and maintaining leaky storage tanks. Several insurers who provided liability coverage for the various defendants asserted that a pollution exclusion in their policies barred coverage. 

The trial court agreed, and the dispute reached an appellate court in Wisconsin. 

The Appellate Court’s Decision 

The appellate court affirmed, holding that septage was “unambiguously” a pollutant for purposes of the so-called “absolute” pollution exclusion and the total pollution exclusion in the policies. 

In the appellate court’s view, septage was “plainly a contaminant and irritant” and “waste” within the meaning of the exclusions. 

The appellate court rejected the argument that the damage “was really caused by the nitrogen in the septage,” which oxidized in the soil and became nitrate.  The insured argued that nitrogen and nitrate could not be pollutants because they were “universally present and generally harmless in all but the most unusual instances” and the nitrogen cycle that produced nitrates was “a necessary and natural part of life.” The appellate court found that this argument ignored “key language” in the pollution exclusions. 

It explained that each exclusion barred coverage for damages caused by a “pollutant,” describing the causation component as “arising out of” or “resulting from.” In the appellate court’s opinion, there was no dispute that, but for the septage, the well water would not have been contaminated. 

The case is Preisler v. Kuettel’s Septic Service, LLC, No. 2012AP2521 (Wis. Ct. App. Jan. 14, 2014).