specially concurring.
121 Although I concur in affirming the judgment, I write separately to emphasize that the policy's definition of "pollutant" excludes coverage related to "waste" only when the waste is an irritant or contaminant. In addition, I do not concur with the majority's reference to the statutory definition of pollution in the Clean Water Act, 38 U.S.C. 1362(6), and the Colorado Water Quality Control Act, section 25-8-105(15), C.R.S. 2011. The policy's definition does not refer to or incorporate the definition established by the United States Congress for purposes of the Clean Water Act, and future reliance on that definition would erroneously expand the policy definition.
122 The plaintiffs contend that the term "pollutant" does not include the bacteria and parasites carried by a residential sewage back-up. They also argue that there was no discharge of a "pollutant."
123 Reading the pollution exclusion as a whole and giving harmonious effect to its terms, I conclude that the controlling question is not whether the sewage here was *600waste or industrial waste, but whether it was an irritant or contaminant. As applied here, I conclude that the trial court did not err when it granted summary judgment to State Farm.
[ 24 The policy's pollution exclusion states that business liability and coverage for medical payments do not apply to, among other things, "bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, spill, release or escape of pollutants" at or from specified locations subject to certain conditions.
{25 According to the policy, " 'pollutants' means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." Reading this provision and construing it as would a reasonable person of ordinary intelligence, to be a pollutant, a substance must be a solid, liquid, or gas. These are physical states. There was no genuine issue of fact that the sewage was a mixture of solids and liquids. 6 ¢
126 However, a pollutant must be an irritant or contaminant. These are the essential characteristics of a pollutant under the policy. In this regard, I agree with the analysis of the division in Roinestad v. Kirkpatrick, 300 P.3d 571, -- (Colo.App.2010) (cert. granted May 9, 2011).
T27 Thereafter, the definition of "pollutant" provides a nonexclusive list of physical (perhaps hybrid) forms that are included in the three essential physical states: smoke, vapor, soot, and fumes. Because this is a non-exclusive list of physical forms, it does not reduce the seope of substances that might be irritants or contaminants. Nor does it supplant the essential requirement that a substance in any of these forms is a pollutant only if it is an irritant or contaminant. The list also provides other examples: acids, alkalis, chemicals and waste. Again, these are non-exclusive examples that neither reduce the scope of nor supplant the requirement that to be a pollutant, a substance must be an irritant or contaminant.
128 "Waste" might be solid, liquid, gaseous, or a mixture of these. In common parlance, it is what remains after a substance has been used for its intended purpose. Not all waste is an irritant or contaminant. The policy does not provide a broad definition of "waste." Instead, it again provides a nonexclusive list. It says " 'waste' includes materials to be recycled, reconditioned or reclaimed." This definition makes it clear that "waste" is not limited to materials that are of no further use and are being discarded. In so doing, the definition does not render all waste to be a pollutant. To be a "pollutant," the insurance company must still prove that the waste was an irritant or contaminant.
129 Because I perceive no ambiguity in the policy language, I reject the plaintiffs' argument that we should rely on a dictionary definition of "pollutant" that says that the term is "especially" applicable to "a waste product of an industrial process."
€30 Accordingly, the issue before us is whether there was a genuine issue of material fact about whether the sewage back-up in this case was an irritant or contaminant. See Roinestad, 800 P.3d at --.
31 The policy does not define "irritant" or "contaminant." Here, we can resolve the issue by determining the meaning of "contaminant." To contaminate means "to soil, stain, corrupt, or infect by contact or association" or "to render unfit for use by the introduction of unwholesome or undesirable elements." Webster's Third New International Dictionary 491 (2002). A "contaminant" is "something that contaminates." Id.
1 32 Plaintiffs argue that "State Farm did not allege or present evidence that the sewage was an "irritant." " However, State Farm was not required to prove that the sewage was an irritant. Instead, it could opt to prove that the sewage was either an irritant or a contaminant, and, here, the policyholder did not dispute that it was a contaminant. The policyholder's motion for summary judgment admitted that evidence submitted to the arbitrator established that there had been a sewage back-up at the policyholder's rental property in 2002, and that it was deemed "a danger to life, limb, health and property." She also admitted that the tenants had proved that one of them was ultimately infected by parasites and/or bacteria that arose from the sewage backup.
1 33 The parties submitted their cross motions for summary judgment based on a stipulation that contained twenty-two para*601graphs and had nineteen attachments. The attachments included a copy of the arbitration award. The award states that the policyholder "admitted that she knew or reasonably should have known that the mold (mushrooms), collecting water and raw sewage presented an unreasonable risk to petitioners' health and safety." It also states, "The record reflects a back-up of raw sewage in the [policyholder's] house that occurred in 2002," and, "In addition to the raw sewage, the evidence demonstrated a long-term leaking and water collection problem." In the arbitration, the policyholder stipulated that she had violated section 13-21-115, C.R.S. 2011, and that she had created a dangerous condition. On this and other evidence, the arbitrator found that the tenants proved that "the residue of the sewage back-up and/or the leaked, collected water caused the harm [to the tenants].
34 In my view, the parties presented the trial court with undisputed facts that established that the sewage that backed-up was a contaminant and that the tenant's bodily injury arose from its discharge, dispersal, spill, release, or escape. Accordingly, I concur with the majority that the trial court did not err when it granted summary judgment to State Farm.