Let's face it, the federal Superfund law has not been exactly pretty when it has come to our nation's municipalities. We have many Superfund sites in this country. Countless municipalities have been shaken down for ridiculous financial settlements to avoid the costs of protracted Superfund litigation.

Why do municipalities have to pay? After all, municipalities are not large generators have hazardous waste. Assuming that their public works department does properly dispose of its spent paint and oil cans, municipalities really do not handle hazardous substances. Instead, they are generally in Superfund cases because they "arrange for the disposal" of their residents' household waste. Doing nothing more than "arranging" can result in a municipality being pulled into an expensive Superfund case. How is that fair?

Consider, for example, what Congress did for our professional recyclers. On November 29, 1999, Congress passed and the President signed into law the Superfund Recycling Equity Act. Pub. L. No. 106-113, 113 Stat. 1536 (November 29, 1999). This amendment to CERCLA was intended to reduce Superfund liability exposure for many professional recyclers.

Those who arranged for recycling of recyclable material are no longer liable as either arrangers or transporters of hazardous waste. 42 U.S.C. Sec. 9627(a). Recyclable material is defined to include scrap paper, scrap plastic, scrap glass, scrap textiles, scrap rubber (other than scrap tires), scrap metal, or spent lead acid, spent nickel-cadmium, and other spent batteries.

In the case of scrap paper, plastic, glass, textiles and rubber, (except whole tires), to receive protection under the Amendment the recyclable material must meet commercial grade specifications, a market must be shown to exist for the recyclable material, a substantial portion of the material must be used in producing new product, the recycled material must replace what otherwise might have been virgin material, and a level of due diligence must be adhered to.

This due diligence requirement may require a significant change in the manner in which professional recyclers conduct their business. The recycler must establish that he or she exercised "reasonable care" by ensuring that that the recycling facility, referred to as the "consuming facility," met substantive legal requirements relating to site operations. This requirement does not extend to "procedural or administrative" requirements.

If you have any question about how strong this protection is that favors professional recyclers, consider this: if anyone wrongfully files a CERCLA contribution action against a party entitled to a CERCLA recycling defense, the person initiating the suit "shall" be liable for the costs of the defense, including attorneys fees and exert witness. "Shall" suggests that attorneys fees will have to be paid - a Court will not have discretion. Few laws provide that degree of protection for any group.

There is no question that recyclers are important. Superfund protection may even make sense when it comes to this group of professionals. But bluntly asked, why are recyclers so much more important to America's well being than municipalities?

Municipalities have to arrange for the disposal of their residents' waste to keep municipalities clean and healthy. Municipalities do not make a profit by arranging for trash disposal. Rather, the service is akin to providing police and fire protection: it is necessary for the public good.

If Congress could agree on a method for reducing Superfund liability for recyclers, it certainly can do so for municipalities. And hopefully, someday Congress will do so.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.