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Michael D. (Mike) Hockley

Partner

Spencer Fane attorney Michael D. Hockley square

T 816.292.8233 / 913.327.5133
F 816.474.3216
mhockley@spencerfane.com

Superfund Proceedings

Lead counsel for Farmland Industries at a multi-party Superfund Site in Hutchinson, Kansas involving alleged groundwater contamination from carbon tetrachloride used as a fumigant by grain elevators operated by Farmland and others. Activities included negotiation of a multi-party agreement with the City of Hutchison in which the City and several elevator operators jointly fund a new City water treatment plant that not only provides clean drinking water to the City but removes carbon tetrachloride, high levels of naturally occurring salt, and other contaminants from the drinking water source.

Lead counsel for two Fortune 200 companies in CERCLA cost recovery action relating to the Tri-States Mining District sites in Missouri, Kansas, and Oklahoma, Asarco v. NL Industries, et al. Plaintiff resolved its CERCLA response cost and Natural Resource Damages (NRD) liabilities through a bankruptcy settlement with the United States, the States, and the NRD Trustees and seeks to recover a portion of its bankruptcy settlement payment. Issues include, inter alia, whether the defendants’ settlements provide contribution protection from plaintiff’s claims, whether the NRD claims are ripe, and whether the environmental damages are divisible due to the geographic separation of the various PRPs’ former mining operations.

Lead counsel for national waste disposal company at the Lenz Oil Superfund Site near Chicago, Illinois. Activities included the negotiation of an internal PRP agreement, a cost allocation agreement, and a complex RD/RA Consent Decree involving working parties, cash out parties, EPA, and the State of Illinois, United States v. Alpha Construction, et al., (N.D. Ill. 2002). The Consent Decree is unique because it requires the United States and the State to pay the PRPs performing the work approximately $5 million collected by the United States in prior de minimis party settlements.

Lead common counsel for PRP group seeking to recover response costs from more than 250 de minimis third-party PRPs at a Des Moines drum recycling facility. Activities included assembling and evaluating site evidence, identifying third-party PRPs, preparing evidence packets against each third-party PRP, and sending demand letters to and conducting settlement negotiations with each third-party PRP, resulting in the recovery of more than $2.2 million from approximately 110 settling parties.

Lead trial counsel for Kansas City Power & Light Company in defense of a CERCLA section 107(a) and section 113 cost recovery lawsuit, Interstate Power Company v. Kansas City Power & Light Company, et al. This action was brought by the current owner of a former manufactured gas plant site located in Mason City, Iowa, for response costs relating to the cleanup of coal tar residues. Following the trial of liability issues and the filing of third party actions against the City of Mason City and its contractor for installation of sewer lines that caused the additional spread of coal tar contamination, negotiated multi-party allocation of response costs. Activities also included serving as lead counsel for negotiating removal action consent agreement with EPA on behalf of all of the potentially responsible parties (PRPs) and a remedial action consent decree on behalf of the PRPs to perform groundwater remediation.

Lead counsel in defense of a CERCLA Section 107(a) cost recovery lawsuit brought by the United States against Kansas City Power & Light Company in its capacity as a successor in interest and two other PRPs. The United States sought to recover removal response costs for the cleanup of coal tar residues from a former manufactured gas plant site located in Clear Lake, Iowa. Representation included the negotiation of an allocation among the three PRPs and a cash-out settlement by the PRPs for less than 50% of EPA’s response costs.

Lead counsel for national label manufacturing company named as a PRP in a CERCLA Section 106 removal action at a drum recycling facility in Des Moines, Iowa. Served as lead PRP group negotiator for removal action consent agreement. Served as chairman of eleven-member PRP group steering committee responsible for implementing the removal action and conducting cost recovery activities against other PRPs.

Lead counsel for Deere and Company named as a PRP for the cleanup of a lead acid battery manufacturing and service facility in Iowa. Representation included negotiation of a “carve-out” consent agreement to address a portion of the facility and evaluation of cost-recovery options.

Lead counsel for AT&T at the Double Eagle Refinery NPL site in Oklahoma City. Representation included organizing PRP group, submitting a good faith cash-out offer in response to CERCLA Section 122(e) special notice letter, retention of a consultant to conduct PRP search, and negotiation of de minimis buy-out agreement with EPA.

Lead counsel for food wholesale company named as a potentially responsible party in a CERCLA section 107(a) cost recovery lawsuit brought by the United States in the Southern District of Iowa, United States v. The Michael Company, et al. The United States sought to recover response costs from the service and repair customers of an industrial lead acid battery manufacturing and service facility.

Lead common counsel for The Michael Battery Sites PRP Group, the customer defendants in United States v. The Michael Company, et al. Representation included directing and conducting all aspects of the joint discovery, retention of experts, and preparing draft joint motion for summary judgment and joint brief in support of summary judgment motion. The United States attempted to extend CERCLA joint and several liability to persons who arrange for the repair of industrial lead acid fork lift batteries. Legal and factual issues included whether such service and repair transactions constitute arrangements for disposal of wastes. After deposing the government expert, negotiated cash-out settlement for approximately one-eighth of the government’s demand.

Lead counsel for national waste disposal company named as one of four PRPs, including the Department of Energy, at a Missouri NPL site involving radioactive wastes generated during the Manhattan Project. Served as lead PRP group negotiator for RI/FS consent order. Other activities include intra-PRP negotiations, legal review of technical submissions to EPA, and negotiation of RI/FS consent order for second operable unit at site.

Co-counsel for PRP group that challenged a $5 million settlement agreement between the United States and a PRP in Chapter 11 bankruptcy at the Lowry Landfill Site in Denver, Colorado. The basis for the challenge was that the settlement failed to comply with the requirements of CERCLA section 122 and was an inadequate settlement amount for a site in which the remedial action cost estimates ranged from $0.5 to $4.5 billion. Activities included the submission of a motion and supporting memorandum objecting to the settlement and conducting extensive discovery against the United States regarding the settlement process, including taking the depositions of the following government officials: the Chief of Superfund Enforcement Section, Hazardous Waste Management Division, Region VIII; the EPA Remedial Project Manager for the Lowry Landfill Site; the Assistant Regional Counsel responsible for the Lowry Landfill Site; and the Assistant Chief, Environmental Enforcement Section, Land and Natural Resources Division of the Department of Justice. This action resulted in a significantly larger settlement contribution by the debtor PRP.

Lead counsel for the automotive division of a major defense contractor in responding to EPA special notice letter and other demands at Iowa NPL site at which company is a principal PRP. Tasks included developing strategy for and negotiating CERCLA RI/FS consent agreement.

Co-counsel for T H Agriculture & Nutrition Company, Inc. in responding to EPA special notice letter concerning a Kansas NPL site. Activities included membership on PRP steering committee, negotiating a remedial design consent agreement with EPA, negotiating intra-PRP allocation and other intra-PRP disputes, negotiating the consultant contract on behalf of the PRP group, negotiating access agreement with facility owner, and assisting the PRP Technical Committee by providing legal review of submissions to EPA.

Lead counsel for dissolved local metal salvage operation in defense of CERCLA section 106 unilateral order issued against numerous parties that shipped scrap metal to secondary lead smelter NPL site in Illinois. Participation included responding to CERCLA section 104(e) information request, resisting unilateral order on grounds that company is not liable as a dissolved corporation, and assisting client in asserting insurance claim against carriers.

Lead counsel for AT&T in responding to EPA CERCLA Section 122(e) Special Notice of Liability concerning an Oklahoma NPL landfill site. Activities included negotiating interim PRP group agreement, submission of good faith offer on behalf of PRP group, negotiation of a permanent PRP group agreement, and negotiating a de minimis settlement with EPA.

Lead counsel for national waste disposal company at various other Superfund sites.

 

Military Legal Experience

Army Reserves

Former Lieutenant Colonel in The Judge Advocate General’s Corps, U. S. Army Reserve. Previously assigned to the U.S. Army Environmental Law Division (“ELD”). Experience with the ELD includes assisting an Army installation in negotiating RCRA consent agreement with a state environmental agency and assisting another Army installation with the evaluation and defense of a RCRA penalty action brought pursuant to the Federal Facilities Compliance Act.

Army Active Duty

Assigned to the 101st Airborne Division (Air Assault). Prosecuted or defended over 150 contested criminal trials, more than 30 of which were jury trials. Key cases included defense of a first degree murder trial resulting in acquittal and the successful prosecution of a capital first degree murder trial.

Advised the Command on a variety of civil and administrative matters, including government contract disputes and civilian personnel discrimination claims against the Army.

Served as Assistant Professor at The Judge Advocate General’s School, U.S. Army in Charlottesville, Virginia. Taught Constitutional Law and Federal-State Relations in LL.M. program for military attorneys and the annual Federal Litigation course to Department of Defense attorneys.

 

Miscellaneous Environmental Representation

Lead counsel for a cooperative in defending an EPCRA administrative penalty proceeding relating to alleged reporting violations at a petroleum refinery. Significant activities included the negotiation of a global multi-media settlement of alleged RCRA violations and alleged Clean Air Act violations through the use of a multi-media supplemental environmental project.

Lead counsel in Farmland Industries v. Wilson & Company, Architects & Engineers, a lawsuit to recover Clean Air Act penalties imposed on a refinery resulting from defendant’s improper design of an air emissions control device.

Lead outside counsel for a Kansas aircraft parts manufacturing company in asserting a claim for environmental indemnification from the prior owner. Activities included evaluating potential environmental issues and the breach of the seller’s representations and warranties, negotiating an agreement settling environmental claims against the former owner, and negotiating a consent agreement with Kansas Department of Health & Environment resolving the notice of violation.

Co-counsel for General Dynamics Corporation in defense of declaratory judgment action filed by Aetna Casualty & Surety Company in federal court in St. Louis, Missouri seeking declaration of non coverage under comprehensive general liability insurance policies at 16 sites nationwide for which General Dynamics faces environmental cleanup liabilities.

Special environmental counsel for clients involved in purchasing, selling, or lending money for transactions involving contaminated property.

Lead counsel in various state and federal administrative penalty proceedings.

 

RCRA Corrective Action

Lead counsel for T H Agriculture & Nutrition Company, Inc. in negotiating a multiparty RCRA corrective action consent agreement for chemical manufacturing facility. Activities included negotiation of an intra-party cost allocation agreement, consent agreement negotiations with EPA, and legal review of technical submissions to EPA.

Lead counsel for T H Agriculture & Nutrition Company, Inc. in negotiating a multiparty RCRA corrective action consent agreement for an Iowa chemical distribution facility. Activities included consent agreement negotiations with EPA, negotiation of intra-party participation agreement, assisting in the selection of a project consultant, negotiating with a municipality seeking to install sewer interceptor line through portion of facility, negotiating with off-site property owners for access to conduct investigative activities, and providing legal review of technical documents prior to submission to EPA.

Lead counsel for the Petroleum Refinery Division of Farmland Industries, Inc. in negotiating a RCRA section 3008(h) corrective action consent agreement to conduct a RCRA facility investigation/corrective measures study at an active petroleum refinery facility in southeastern Kansas. Activities included negotiation of a work plan involving the investigation of six broad areas of concern in lieu of investigating more than 350 separate solid waste management units identified by EPA and legal review of technical submissions to EPA.

Lead counsel for a former refinery facility owned by Farmland Industries, Inc. located in north central Kansas in negotiating a RCRA section 3008(h) corrective action consent agreement to conduct a RCRA facility investigation and corrective measures study. Significant activities included obtaining an agreement by the state underground storage tank trust fund program to share in the costs of a portion of the investigation of an off-site plume.

Lead counsel for an Omaha, Nebraska container manufacturing facility owned by a Fortune 100 company in negotiating a RCRA section 3008(h) corrective action order to conduct a RCRA facility investigation. A key feature of the order was an abbreviated investigation utilizing information developed in previous voluntary investigations by the facility.

Lead counsel for John Deere Des Moines Works, an agricultural equipment manufacturing facility owned by Deere & Company, in negotiating an abbreviated RCRA section 3008(h) corrective action consent order. The agreement incorporated results of previous investigations at the facility, which resulted in substantial savings by eliminating the majority of the work contained in EPA’s original demand.

Lead counsel for T H Agriculture & Nutrition, LLC in negotiating a RCRA Facility Investigation Consent Order for an Eastern Iowa facility incorporating streamlined RCRA reform procedures.

 

Landfill Permitting

Lead counsel for national solid waste management company in successfully obtaining horizontal and vertical expansion of the Forest View Landfill in Kansas City, Kansas. Activities included negotiating Special Use Permit terms with Planning and Zoning (P&Z) Commission Staff, hearings before the P&Z Commission, hearings before the Unified Government of Wyandotte County and Kansas City, Kansas Board of Commissioners, negotiations with citizens’ groups opposing the expansion, and negotiation of a revised subtitle D permit with the State.

Lead counsel for a national solid waste management company in successfully negotiating a modification to the Special Use Permit and Subtitle D Permit for a vertical expansion of the Courtney Ridge Landfill in Sugar Creek, Missouri. This expansion extended the life of the landfill by approximately twenty years.

Lead counsel for a national road construction company in the successful appeal of the denial of a modification to a Construction and Demolition (C&D) Landfill Permit in southern Johnson County, Kansas. The State denied the landfill’s permit modification request and issued an order to close the Landfill in less than a year. This order would have required the Landfill to purchase “clean” fill to bring the Landfill to the required final elevations at substantial expense to the landfill. Activities included filing an appeal, devising a strategy to demonstrate that the landfill could continue to operate while eliminating the alleged odors and dewatering the landfill to acceptable levels, and negotiating an interim measures agreement to demonstrate the feasibility of continued operation. The final resolution included an order allowing the requested expansion of the landfill and continued operations until the final closure grades are reached using C&D waste instead of clean fill.

 

Clean Air Act

Lead counsel for Kansas City Power & Light Company (KCP&L) in permitting a new 900 MW coal fired electric generating unit (EGU) and retrofitting environmental controls to the existing EGU at the KCP&L Iatan Generating Station in Weston, Missouri. Significant activities included successful negotiation of all environmental permits necessary to construct the new EGU and retrofit the existing EGU, including a PSD permit, a § 10 Rivers and Harbors Act certification, a § 401 CWA certification, a § 404 CWA permit, and approval of the Environmental Impact Assessment.

Lead counsel for KCP&L in successfully defending an appeal by the Sierra Club challenging the PSD construction permit for a new coal fired power plant at the Iatan Generating Station. The Sierra Club alleged nine separate counts as grounds for its appeal. All but one count was dismissed prior to the hearing. The Sierra Club agreed to dismiss the final count on the first day of the hearing in a settlement approving the original permit conditions in exchange for an agreement by KCP&L to reduce emissions limits on a power plant at another location, add additional wind generation capacity, and implement energy conservation initiatives. The new power plant went on line as scheduled.

Lead counsel for a major utility in a dispute over whether the State of Missouri can impose emissions-based fees on a substituted Phase I affected unit prior to 1995. After responding to the State’s demand letter with a memorandum supporting the utility’s position and appearing before the State Air Conservation Commission to object to the State’s demand, the State elected not to pursue the fees.

Lead counsel for major utility in successfully objecting to the State of Missouri’s attempt retroactively to establish service fees for Phase I affected units.

Counsel for an Iowa utility in an investigation to determine whether the utility properly had classified a boiler as an affected unit when submitting data to the EPA for the National Allowance Data Base. This representation involved an interpretation of whether a boiler “served” an affected unit if it had a common yoke with another boiler that served an affected unit.

Lead counsel for Farmland Industries, Inc. in successfully defending Clean Air Act penalty action brought by the Department of Justice alleging the installation and operation of an inadequate air emissions control device for an oil water separator at a petroleum refinery.

Lead counsel in successful appeal of October 1998 NOx SIP Call final rule on behalf of a consortium of six Western Missouri utilities. Although the court ruled in favor of the EPA as the rule applied to all but 17 of the 22 affected states, the court rejected the rule as it applied to Western Missouri and the six Western Missouri utilities we represented. State of Michigan, et al. v. U.S. E.P.A., 213 F.3d 663, 681-85 (D.C. Cir., 2000).

Miscellaneous representation of various clients regarding Title V air permit applications, new source review issues, and PSD determinations.