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.