Do you live near an old landfill or contaminated industrial establishment? Many Americans do live near polluted properties, and some do not even know it.

In this country, contaminated properties are regulated by various local, state and federal laws which require that the properties be cleaned up. Most dirty properties are not that dirty, and are regulated under local and state laws. But the real bad properties, the ones that can cause the most harm, have a special label: they are called "Superfund" sites.

The Superfund is a federal program. To become a Superfund site, a location is generally scored using specified guidelines that apply nationally. The scoring considers many things, but focuses on the nature and amount of bad materials on the property, and their real life ability to make people ill. Usually, but not always, a site has to be pretty bad to make it on this list.

Historically, the Superfund net was a broad net, and once the feds labeled a company or a town as partly responsible for the contamination, it was impossible to become untrapped. Until recently, with few exceptions, anyone who was responsible almost always ended up paying crazy amounts in settlement costs or judgments to resolve liability claims asserted against them.

And these lawsuits brought by the government, or sometimes brought by large polluters against smaller ones, last forever and can costs crazy amounts in lawyers fees. The Superfund process has been a mess: most who know it have been critical of it. Many news programs, including recently 60 Minutes, have discussed just how unfair this process can be.

Now, finally, things might be changing, thanks in part to a brave federal judge from Michigan. The case, Kalamazoo River Study Group v. Rockewell International Corporation, stands for the correct and fair proposition that sometimes, a company who hardly contributed any bad stuff into a mess that was almost entirely created by other companies,should be able to walk away from a Superfund lawsuit and pay nothing at all. Even when the company who is walking is an industrial giant such as Rockwell International.

The Kalamazoo River Study Group (KRSG), an unincorporated association of paper manufacturers, brought suit against Rockwell International Corporation, alleging that Rockell polluted the Kalamazoo River with polychlorinated biphenyls (PCBs), which are dangerous materials.

The trial judge court first determined that Rockwell's release of PCBs into the Kalamazoo River was significant enough for it to be legally responsible under the Superfund law. But, and this is the amazing thing, the court ultimately declined to allocate any portion of the cleanup costs (in the millions) to Rockwell, finding that its release of PCBs was minuscule, less than one-hundreth of 1%, in comparison with that of the companies comprising the KRSG. An Appeals Court upheld this ruling.

Based upon studies showing that Michagan's Kalamazoo River was heavily polluted with PCBs, the river made the Superfund list. Three paper mills, which became the KRSG, agreed to clean the river. They then sued other companies that they believed also contributed PCBs to the river, including Rockwell. That is how Rockwell got sucked into this mess. Once sucked in, usually a company does not get out unless it pays a small ransom. In fact, settlements of Superfund cases often require payments of a share of responsibility, plus costly "premiums."

The trial court identified three factors as generally relevant to the allocation of cleanup costs: (1) the relative quantities of PCBs released by the parties, (2) the relative toxicity of those PCBs, and (3) the cooperation of the parties with the regulatory authorities. After the court found that the latter two factors did not favor any particular allocation of response costs, it focused on the relative quantity of PCBs released by Rockwell versus the amount released by the KRSG. The district court determined that Rockwell had likely released no more than 20 pounds of PCBs from its Allegan facility. In contrast, the court found that the members of the KRSG had released "hundreds of thousands of pounds" of PCBs into the River. Based upon these findings, the court did not allocate any response costs to Rockwell. A shockingly fair decision!

What does this decision mean to you? Polluted properties affect all of us. If PCBs are released into our rivers, they affect our fish and our recreational abilities. Other Superfund sites have harmed our drinking water and our air. Cleaning these sites is a priority for every American.

But, in this country, we treat people and companies fairly. Superfund law has been grotesquely unfair for a long time. One federal judge got it right. And fair treatment for one Defendant, even in the context of a Superfund case, is in the long run healthy for all of us.

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.