Stephen Fitzgerald

Stephen has represented clients at sites that were the genesis of the Superfund program. As part of this practice he has defended clients in federal and state enforcement actions and private party suits under federal environmental statutes including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), the Clean Air Act (CAA), Atomic Energy Act (AEA), Emergency Planning and Community Right-to-Know Act (EPCRA), National Environmental Policy Act (NEPA), Oil Pollution Act (OPA), and related state laws. He also has pursued claims against federal potentially responsible parties. Stephen also advises on enforcement, defense, and construction of environmental indemnities and has managed the environmental financial assurance program for a large oil, gas and chemical company.

Environmental Compliance, Regulatory & Administrative Representation

• Counsel oil, gas, chemical, and manufacturing clients on issues relating to operation and management of over 180 international and domestic environmentally impacted sites in more than 30 states including Texas, California, New York, New Jersey, Washington, Louisiana, Oklahoma, Tennessee, Ohio, Indiana, Virginia, and Pennsylvania
• Defend numerous administrative environmental enforcement and private party claims under federal and state environmental statutes, regulations, and common law theories
• Defend a $20 million federal response cost demand at one of the largest Superfund copper mining sites leading to two consent decrees involving the United States, federal potentially responsible parties, a federal corporation, and state and federal environmental agencies
• Served as common counsel between the New Jersey Department of Environmental Protection (NJDEP) and over 50 defendants and third-party defendants in New Jersey Superfund Site litigation and alternative dispute resolution process and negotiate final consent decree with NJDEP on behalf all parties
• Act as environmental crisis incident response counsel for multiple clients nationally and respond to acute environmental events releasing atmospheric, surface and subsurface hazardous substances
• Provided environmental compliance counseling to manufacturing clients related to waste disposition, self-reporting, occupational health and safety (OSHA), worker safety, Greenhouse gas emissions, recycling, and sustainable operations
• Pursue claims against governmental entities as potentially responsible parties for historical environmental impacts at oil and gas, mining, and chemical sites
• Represented a client in response to a state agency inquiry regarding heavy metals simultaneously leaching into approximately 50 different streams across multiple states culminating in a voluntary removal response
• Represented client against administrative and third-party claims associated with the unintentional disposal of radioactive source materials
• Interface with a client’s environmental, technical accounting, communications, and treasury groups to manage and administer a $350 million environmental financial assurance program in 17 jurisdictions including chief financial officer test letters and parent guarantees, environmental insurance, letters of credit, trusts, and surety bonds
• Represent aerospace component manufacturers in multistate environmental enforcement actions
• Provide legal guidance relating to accrual of financial reserves, the ability to estimate losses and estimation of loss contingencies for use in support of public financial reporting and disclosure
• Negotiated natural resource damages liability release from federal and state trustees for a 20-mile river stretch with 125 years of industrial activity without incremental cost or penalty
• Defend energy transmission and storage client in CAA enforcement matter
• Negotiated clean-up action and liability release agreement with private equity firm specializing in natural resource development
• Represented client with regulatory and third-party damage claims at radioactive waste disposal site leaching groundwater into nearby ephemeral waterway
• Advised clients at former petrochemical refining/production and retail sites with impacted soil, groundwater, and vapors where sensitive receptors are co-located or in close proximity
• Worked with a client to delist a large impacted soil area from a Superfund site and reduce its size by 75% through a streamlined administrative procedure facilitating redevelopment
• Lead group of de minimis hazardous substance contributors in allocation and settlement negotiations against large performing parties and EPA ultimately leading to a 70% settlement demand reduction
• Assisted client in developing RCRA waste disposition and reuse program for materials containing radioactive isotopes
• Evaluated clients’ portfolio of facilities/sites for Greenhouse Gas reporting requirements and Sustainability/Green Remediation opportunities
• Counseled a client remediating chrome-impacted groundwater at a geotechnically sensitive former quarry within a floodplain
• Advised manufacturing clients on spill reporting at operating chemical facilities and pipeline clients on hydrocarbon release impacts to surface water
• Assisted a client in development and execution of its environmental self-audit and materials recycling programs
• Created, and negotiate with EPA, a novel RCRA Design Investigation/ Focused Feasibility Study order to implement presumptive containment remedy
• Advised client on AEA and RCRA obligations for mixed high-level waste streams and mixed low-level waste streams
• Negotiated RCRA orders at former chemical manufacturing facilities in Delaware and West Virginia
• Advised clients on their US and European obligations for long-term water treatment operations

Merger, Acquisition, Disposition, Capital Market and other Transactional Support

• Advised public client on allocation, site distribution, indemnity, guarantees, and representations and warranties in multibillion dollar spin-off of a publicly listed energy company
• Advised on the environmental transactional points and lead environmental diligence for a multibillion dollar electrical transmission and distribution assets swap
• Advised pre-cast concrete pipe manufacturer on environmental aspects of strategic acquisitions and dispositions of various manufacturing businesses
• Supported real property transactions by providing counsel on property access, land trusts, federal development, restrictive covenants and institutional controls, conservation easements, property subdivision, and development bonds
• Perform transactional due diligence to identify environmental, social, and governance (ESG) risks in acquisitions and financings and develop mitigation strategies to limit ESG risks
• Developed and negotiate leasehold transaction documents for environmentally impacted real property to allow for surface development and reuse of contaminated property
• Advised large private equity fund on acquisitions and dispositions of various portfolio companies in the data storage and manufacturing sectors
• Advised on environmental liabilities and disclosures for underwriters in secondary common stock offerings
• Drafted and negotiate environmental master services agreements, purchase orders, and contracts for services and goods
• Advised a leading vehicle manufacturer on the environmental aspects of strategic development arrangements supporting innovation in hydrogen fuel cell electric vehicles and related fueling infrastructure
• Represented buyers in the acquisition of contaminated property and water treatment systems
• Enforced environmental indemnity agreement against the United States allowing a client to pursue development plans at or near environmental areas of concern
• Worked with exploration and production entities on allocation of environmental responsibilities at compressor stations, fractionators, and inactive emergency relief pits
• Advised seller on environmental investigation procedures and environmental indemnity in $100 million inactive petrochemical plant disposition
• Counseled upstream client on a purchase and sale agreement, unit agreement, and unit operating agreement obligations at 20,000 acre operating oil and gas field
• Prepared reports to client’s environmental committee and board of directors

Litigation

• Served as lead counsel in $90 million indemnity litigation against the United States for recovery of environmental response costs
• Represent and defend client in Superfund cost recovery case while successfully arguing motion for dismissal in Maryland federal court leading to dismissal of complaint and all claims against client
• $10 million private cost recovery claim at a New York Superfund site utilizing contract, CERCLA, RCRA, and common law defenses
• Litigated and serve as trial co-counsel in Superfund contribution trial, 428 F. Supp. 2d 288, before the US District Court for the Eastern District of Pennsylvania resulting in favorable $1.5 million judgment and defend resulting Third Circuit appeal, 287 Fed. Appx. 171 (3d Cir. 2008)
• Pursued litigation defense strategy allowing client to be dismissed from Indiana federal private party litigation at the pleadings stage using a successor liability defense
• Represented clients in federal and state environmental, toxic tort, and land use litigation in Texas, New York, New Jersey, Maryland, Washington, Pennsylvania, Indiana, and Alabama
• Recover $2 million for client in the Plastics Additives Antitrust Litigation (MDL) in the US District Court for the Eastern District of Pennsylvania
• Planned, conducted ,and managed numerous internal investigation interviews of large multinational petrochemical corporation management and personnel, managed all MTBE class action discovery for same and lead deposition of one of three representative individual plaintiffs