Kevin A. Gaynor

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)

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 supplementalenvironmental project part of the settlement was subsequently used by EPA as a model for the implementation of its SEP policy

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)

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 11^th 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

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)

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

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

Chem Waste Management v. EPA, 869 F.2d 1526 (DC Cir. 1989)

VIWAPA v. United States, 30 Fed. Cl. 236 (Ct. Fed. Cl. 1994)

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