Kevin A. Gaynor

Kevin A. Gaynor Partner, Environmental & Natural Resources

Kevin enjoys a national practice as an environmental litigator. His practice focuses on the defense of environmental civil and criminal enforcement actions, and complex environmental litigation matters. He is national environmental litigation counsel for one of the country’s largest natural resources companies and handles matters in fourteen states covering all aspects of environmental litigation.

Before coming to the firm as a partner in 1993, he served in the U.S. Department of Justice, where he was involved in developing national environmental enforcement policies and strategies, and as lead counsel in selected cases of national significance. He also served as Assistant U.S. Attorney in Maine.

Experience Highlights

Environmental Criminal Matters

  • Defended a foreign oil company from environmental criminal charges under multiple statutes associated with an explosion that killed and badly injured numerous persons. Prior to Deep Water Horizon, this was the most complex environmental case initiated by the United States. The matter involved numerous investigations by multiple federal and state agencies, and various Congressional hearings. Resolved the matter short of trial for two felony counts against the company and no charges against individuals. I was also lead counsel on the environmental civil enforcement action, which was resolved with a comprehensive consent decree
  • Defended a large oil company from potential criminal charges associated with an oil spill near a national wildlife refuge that allegedly was responsible for the deaths of 2,000 fledgling brown pelicans, then an endangered species. Successfully convinced federal prosecutors to not bring criminal charges after a multi-year investigation
  • Defended an oil company in the Gulf of Mexico from numerous alleged violations of the Clean Water Act and environmental statues resulting from its operation of several oil platforms. The case resulted in the company pleading to two felonies, but no charges were brought against individuals
  • Washington, D.C., environmental criminal counsel for a North Carolina turkey processor facing multiple Clean Water Act violations from its processing plant’s operations. The case ultimately went to trial, resulting in the conviction of the company, but the acquittal of the plant manager. The company was ordered to pay a fine that was substantially less than it offered to pay to resolve the matter
  • Defended a government contractor in an EPA criminal investigation involving the alleged illegal discharge of hazardous waste, which resulted in a decision by the U.S. Department of Justice to not prosecute
  • Defended a client from environmental claims associated with the discharge of drilling mud into coastal waters in the Caribbean, which resulted in a decision by the U.S. Department of Justice not to prosecute after a five-year investigation
  • Investigated multimedia violations of a major facility in the Midwest that lacked basic operating permits and worked with local counsel to reach a resolution of criminal and civil liability with the state, which precluded federal enforcement
  • Negotiated a global settlement of CERCLA liability with the government and with PRPs as a consequence of claims that a client waste cleanup contractor mishandled the site’s clean up. Also coordinated the settlement with the settlement of the client contractor’s criminal liability, and proposed suspension and debarment
  • Developed legal theories used to reverse the conviction of an individual charged with Clean Water Act violations in United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996), which established new precedent on the intent standard under environmental laws and the application of the public welfare doctrine to these laws
  • Convinced criminal prosecutors not to indict a Fortune 50 client for hazardous waste violations associated with leaking drums that had been improperly labeled and manifested in the course of being shipped from the Caribbean to the United States
  • Represented a hazardous waste treatment company facing multiple counts of violations of RCRA in a criminal action brought by the United States in U.S. District Court in Georgia. Successfully negotiated a plea agreement insulating the president and vice president of the company from criminal charges, established an internal compliance program that satisfied EPA’s suspension and debarment office, and negotiated a fine that was one-half of the economic benefit determined by the government
  • Succeeded another law firm in the representation of a company being charged with criminal violations for the improper handling of hazardous waste. The action was brought in the Western District of Virginia. Negotiated a plea agreement that insulated the president of the company and was drafted to avoid EPA’s suspension and debarment of the company. Successfully negotiated an agreement with EPA’s suspension and debarment office resulting in the implementing of a compliance program and the avoidance of the interruption of business. Also negotiated a fine that was substantially less than the “final offer” made to prior legal counsel
  • Represented a prominent land owner who was criminally charged with illegally filling over 180 acres of wetlands. Negotiated a restoration plan and the institution of a conservation easement on part of the property in return for a reduction in the fine and the avoidance of jail time for the client. The individual supervising the work being done at the property was indicted, successfully prosecuted and sentenced to jail
  • Represented a target in the first environmental criminal prosecution brought by the United States against members of the armed forces. Convinced the government not to indict my client. The government indicted several other individuals who were convicted
  • Represented targets in the first criminal case brought by the United States under Superfund. Negotiated the frame work of a plea agreement whereby the client avoided jail time. The government indicted and successfully prosecuted several other individuals who received substantial jail sentences

Case Citations

  • United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996)
  • United States v. Ellen, 961 F.2d 462 (4th Cir. 1992)
  • United States v. Dee, 912 F.2d 741 (4th Cir. 1990)
  • United States v. Laughlin, 10 F.3d 961 (2d 1993)

Environmental Civil Enforcement Matters

  • Defended the former owner of one of the largest coal-fired power plants in the country for NSR violations; successfully had the case dismissed at the U.S. District Court level, and had that decision affirmed by the Third Circuit; the Third Circuit decision represents the most searing defeat suffered by the United States in its 15-year NSR initiative, implicating a number of aspects of its legal theories; my Client avoided liability of close to a billion dollars 
  • Defended a client in a multimedia enforcement action with particular focus on benzene violations arising from investigation of the plant’s operations after an explosion occurred at the facility
  • Defended three different pipeline companies in enforcement actions brought by the government under Section 311 of the Clean Water Act resulting from numerous and significant releases of oil from the pipelines; in each case, the client incurred minimal injunctive requirements and among the lowest fines in relation to the amount of oil released of any similar enforcement actions brought by the government 
  • Defended a utility in EPA’s NSR initiative, which led to what is generally regarded as the most favorable settlement obtained in the initiative and a pretrial decision by the court cutting off EPA claims for penalties for activities that occurred more than five years ago, eviscerating EPA’s continuing liability theory in the NSR context
  • Represented one of the largest meat packing plants in the country, successfully negotiating a consent decree to cover multimedia allegations of violations and avoiding EPA efforts to shut the plant down 
  • Represented a carbon black company and convinced state and federal regulators to not pursue any major NSR action against the company
  • Defended a cement kiln in multimillion dollar RCRA enforcement action. Negotiated operational modifications that ensured elimination of future compliance problems and a fine that was less than one-third the Agency’s original demand
  • Aggressively investigated asbestos violations associated with the closure of a large facility in the Northwest and reached early resolution of an enforcement action brought by the United States Department of Justice, which ensured that the United States would not pursue a criminal investigation
  • Represented a paper mill in defense of the government’s enforcement of the terms of a consent decree filed in U.S. District Court in the Northern District of Michigan; negotiated consent decree modifications, termination of the decree, and stipulated penalties that were 5% of the government trial attorney’s last and final offer
  • Represented a client facing separate enforcement actions by EPA for air, water, TSCA, and RCRA violations, with total penalties being sought in excess of $1 million; negotiated a settlement of three of the actions in U.S. District Court in the Virgin Islands for less than $50,000; also separately negotiated a settlement of the remaining enforcement action, which had been brought administratively 
  • Represented a company that had previously entered a consent decree with the United States for various air violations; the Department of Justice sought over $1 million in stipulated penalties relating to the implementation of the consent decree; defended the enforcement action and negotiated a settlement of the stipulated penalties of less than $20,000
  • Challenged an EPA TSCA enforcement action on statute-of-limitations grounds and successfully prevailed at the administrative level, establishing new precedent that EPA administrative enforcement actions were subject to the general five-year statute of limitations applied to civil actions; the appeal board’s reversal was mooted by a decision in the D.C. Court of Appeal in a companion case; see 3M v. EPA 17 F.3d 1453 (D.C. Cir. 1994)
  • Defended a pipeline company in a multimedia enforcement action involving more than a thousand facilities.; established the frame work which led to a resolution of the action that provided for a phased cleanup schedule of the facilities and payment of a fine significantly less than EPA originally demanded
  • Defended an aerospace company in an enforcement action brought by EPA claiming 27 counts of violations; the facility was heavily dependent on government contracts and EPA also sought the facility’s debarment from future contracts; the case was filed in U.S. District Court in the Middle District of Florida. It was settled with the client paying 35% of the government’s penalty demand of $7 million, with $1 million being allocated to supplemental environmental projects for which the government allowed a dollar-for-dollar credit, which at the time was unprecedented; in addition, the debarment issues were resolved without interruption in business; finally, as a consequence of the settlement, the company became viewed as a model citizen and the supplemental\environmental project part of the settlement was subsequently used by EPA as a model for the implementation of its SEP policy

Case Citations

  • United States v. EME Homer City Generation, L.P. 727 F.3d 274 (3d Cir. 2013)
  • 3M v. EPA 17 F.3d 1453 (D.C. Cir. 1994)

Contaminated Sites and Remediation

  • Took over the defense of a $100-plus million contribution action and convinced the trial court to reconsider a prior ruling, and then convinced the trial court to dismiss the action. Was lead counsel defending the appeal; the 11th Circuit affirmed the decision; the case established national precedence on Section 107/113 issues
  • Negotiated a cash-out settlement with the government for liability associated with the client’s involvement in a mining site in a western state; the cash-out represented around 15 percent of the government’s initial demand and around 7 percent of the client’s projection of cleanup costs; the settlement was made possible by developing a sophisticated Burlington Northern defense to joint and several liability, and a counter claim against the United States
  • Successfully mediated a private cost recovery case involving 70 parties and $40 million in cleanup costs at the Cinnaminson Superfund Site
  • Reversed a trial court’s decision that a client was liable for $10 million, successfully arguing that client sold scrap metal as a raw material to the facility at issue, and did not arrange for its treatment or disposal; the decision establishes an important new precedent on limits of Superfund liability for a secondary material 
  • Represented a prior owner of an industrial property in a CERCLA action by the present owner for contribution for cleanup costs; the case was brought in U.S. District Court in the Northern District of New York; after three years of litigation, the client paid less than 10% of the plaintiff’s original demand to settle the case and close to the client’s original settlement offer at the commencement of the litigation
  • Represented a spinoff company in a dispute involving responsibility for historic environmental liability at 20 plant sites, and resolved short of litigation through the use of creative insurance vehicles and cashing out liability
  • Defended a Fortune 50 client in a CERCLA private cost recovery action involving seven sites in seven states and two parties with a potential liability exceeding $200 million, by developing novel theories of economic benefit and culpability for the contamination; resolved on highly favorable terms involving a pay-out of eight cents on the dollar despite the client’s ownership of many of the sites for as long as 75 years
  • Represented a municipal owner and operator of a superfund site and negotiated a cash-out with the United States whereby the client paid less than 15% of the projected cleanup costs
  • As Common Counsel for 200 parties in the Maxey Flats Superfund case (Kentucky), negotiated one of the earliest, large-scale de minimis cash outs at a superfund site, resulting in an unprecedented credit to my clients, which covered most of their legal fees
  • As common counsel for Third Party Defendants in U.S. v. Berks Associated 1992 U.S. Dist. Lexis 4978 (E.D. Pa. 1992), negotiated a stay of litigation and settlement track procedures that resolved the case for almost all of the parties

Case Citations

  • Solutia Inc. v. McWane Inc., 672 F.3d 1230 (11th Cir. 2012)
  • Pneumo Abex Corporation, et al. v. CSX Transportation, Inc., 142 F.3d 769 (4th Cir. 1998)
  • U.S. v. Berks Associated 1992 U.S. Dist. Lexis 4978 (E.D. Pa. 1992)

Natural Resources Damages

  • Defended a client from natural resource damage and cost recovery claims associated with the largest petroleum spill in the continental United States, and seeking reimbursement from the Oil Pollution Fund under act of God theory, which led to an unprecedented NRD settlement package valued at less than $1 million 
  • Represented a major chemical company in a significant natural resource damages case on the Gulf Coast and convinced trustees not to pursue the client
  • Organized and drafted client testimony on congressional oversight hearings on natural resource damages which led to the State of Pennsylvania withdrawing a natural resource damage action seeking up to $500 million against the client and others, and re-evaluating its natural resource damage program

General Environmental Matters

  • Worked with an industry leader facing multimillion dollar compliance matters in several states to develop a multi-track compliance strategy to deal with the pending matters, restructure its compliance program, and avoid future compliance problems
  • Obtained a temporary restraining order from the DC Court of Appeals preventing EPA from implementing a statutorily required RCRA regulation, (first third land disposal rule) which led to EPA’s modification of the rule prior to oral argument to accommodate my client’s concerns
  • Sued the United States on behalf of a client that incurred over $7 million in clean up costs as a consequence of oil spillage from one of its storage tanks; the suit was based on Section 311 of the Clean Water Act and claimed that the spill was caused by an act of God; the suit was settled, with the client’s insurer and FEMA reimbursing the client for all of its costs (monetary damages)
  • Assisted in the defense of a client in an action brought by the United States under the Oil Pollution Act for $10 million in response costs and $37 million in penalties as a consequence of the largest inland oil spill in the continental United States; faced with a well-crafted and vigorous act-of-God defense and a substantial counter claim that I crafted, the United States took the unusual step of walking away from its claims on the eve of trial

Case Citations

  • Chem Waste Management v. EPA, 869 F.2d 1526 (DC Cir. 1989)
  • VIWAPA v. United States, 30 Fed. Cl. 236 (Ct. Fed. Cl. 1994)

Lateral Experience (1983-1987)

  • Assistant Section Chief of the Environmental and National Resources Division, U.S. Department of Justice; supervised 35 trial attorneys prosecuting federal environmental enforcement cases in the Northeast and Southwest; involved in developing national environmental enforcement policies and strategies 
  • Trial Attorney, Environmental Enforcement Section of the Lands Division, U.S. Department of Justice; handled landmark cases in the area of Superfund enforcement, including United States v. Wade and United States v. Metate Asbestos Corp
  • Assistant United States Attorney, District of Maine; litigated environmental cases and other criminal and civil matters 

Insights

Contact Details

Washington

T +1.202.639.6688
F +1.202.879.8888
kgaynor@velaw.com
2200 Pennsylvania Avenue NW
Suite 500 West
Washington, DC 20037-1701
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Kevin's Practices

  • University of Virginia School of Law, J.D., 1973
  • University of Connecticut, B.A., 1970
  • Admitted to practice: Connecticut, 1973; District of Columbia, 1978; Maryland, 1991
  • Assistant Section Chief, U.S. Department of Justice, Environmental Enforcement Section, Environment and Natural Resources Division, 1985–1987
  • Assistant United States Attorney, District of Maine, 1984–1985
  • Trial Attorney, U.S. Department of Justice, Environmental Enforcement Section of the Environmental and Natural Resources Division, 1983–1984 (at the advent of the United States’ enforcement of Superfund)
  • Attorney, U.S. Environmental Protection Agency, 1975–1976
  • Chambers USA, Environment (District of Columbia), 2013–2015
  • Legal 500 U.S., Environment Litigation, 2014 and 2015
  • Euromoney’s Benchmark Litigation, Local Litigation Star: District of Columbia, 2012 and 2013
  • Legal Media Group’s (Euromoney’s) Guide to the World’s Leading Lawyers–Best of the Best USA, environmental law, 2008–2009 
  • International Who’s Who of Business Lawyers, environmental law (Law Business Research Ltd.), 2004–2006, 2009 (among top 20 environmental lawyers in the world), and 2011–2013
  • The Best Lawyers in America© (Woodward/White, Inc.), environmental law, 2006–2012, 2015 and 2016; environmental litigation, 2014—2016
  • Selected to the Washington, D.C. Super Lawyers list, Super Lawyers (Thomson Reuters), 2007–2014
  • Euromoney, “Outstanding Environmental Lawyers of the World,” 1997
  • Past Chair: Environmental, Energy, and Natural Resources Section, D.C. Bar; Government Policy Committee, Natural Resources, Energy, and Environmental Law Section, American Bar Association; Environmental Crimes and Enforcement Committee, Natural Resources, Energy, and Environmental Law Section, American Bar Association
  • Fellow: National College of Environmental Lawyers