Mr. Kirsch has litigated and counseled clients on matters involving the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), SARA Title III (TRI), Resource Conservation and Recovery Act, Clean Air Act, Clean Water Act, Safe Drinking Water Act, Toxic Substances Control Act, Occupational Safety and Health Act and related state statutes.
Mr. Kirsch’s litigation victories include three decisions from the D.C. Circuit overturning the listings of two sites on the National Priorities List (Tex Tin Corp. v. EPA; National Gypsum Co. v. EPA). The first of these decisions was the first such decision in the history of the Superfund program. He has also blocked other NPL listings through comments demonstrating the invalidity of EPA NPL proposals, including a site proposed based on contaminated sediments.
Mr. Kirsch won a highly unusual judgment for the defense in a Superfund cost recovery trial; in this case, the first federal Superfund claim ever litigated in a bankruptcy proceeding, the court denied any recovery to the government on an $80 million asserted claim. On summary judgment, he secured the dismissal of veil-piercing, fraud, fraudulent transfer and officer liability claims asserted against officers, directors and affiliated companies in Superfund-related litigation.
Mr. Kirsch’s litigation victories also include a Third Circuit opinion favorably interpreting Superfund contribution rights in favor of our client, Morton Int’l Inc. v. A.E. Staley Mfg. Co., and an expedited summary judgment ruling favorably interpreting bond language against a mine surety company, allowing a mining company to stay in business. The Ninth Circuit has now affirmed this decision after briefing and argument by Mr. Kirsch (United States v. Safeco Insurance Co. of America). He also was responsible for briefing the substantive environmental law issues in City of New York v. Exxon Corporation (S.D.N.Y.).
Mr. Kirsch represented Monsanto Chemical Company (later Solutia, Inc.) a primary PRP at the Industri-Plex Site, in negotiating one of the first CERCLA consent decrees providing for the beneficial reuse of a NPL site and institutional controls, and in subsequent implementation of that consent decree. He also served as Steering Committee Chair and common counsel at the Gold Coast Oil Superfund Site in Miami, Florida, and, in that capacity, oversaw the investigation and remediation of that site, which was removed from the NPL in October 1996. In addition, Mr. Kirsch chaired the Steering Committee at the Liquid Waste Disposal, Inc. of Kentucky Site.
In 2016, Mr. Kirsch testified as an expert witness on U.S. CERCLA law in a major litigation in the British High Court of Justice in London. The court’s opinion praised Mr. Kirsch’s “wide ranging and profound knowledge of this complex area of U.S. law.”
Mr. Kirsch defends and negotiates settlements of government enforcement proceedings under virtually every environmental statute, including one case in which the government brought a 260-count complaint under all of the major environmental statutes, seeking over $1 billion in penalties. He represents clients involved in government inspections, subpoenas, notices of violations, administrative compliance orders, and judicial complaints, and in resolving issues arising from those investigations and enforcement actions, including corrective measures, Supplemental Environmental Projects (SEPs), and Environmental Management Systems. Mr. Kirsch advises on mandatory disclosure obligations and on the EPA’s voluntary disclosure policies, the circumstances in which voluntary disclosures are advisable and the proper protections to take in making voluntary disclosures.
Mr. Kirsch has performed numerous environmental reviews of individual plants in approximately 30 states throughout the country and in Canada, and for several major corporations, has performed environmental reviews of every one of their corporate plants. He works with clients in developing responses to EPA requests for information under the different environmental statutes. Using his science background, Mr. Kirsch has worked extensively with technical experts (including air, water, epidemiological, toxicological and risk assessment experts) in ensuring that their reports and testimony are both understandable and laser focused on meeting the client’s needs.
Mr. Kirsch also advises businesses including major financial institutions on the environmental implications of real estate and corporate organizations and transactions, including securitizations. For example, he advised on environmental aspects of a $1.9 billion securitization involving hundreds of properties, then the largest commercial mortgage securitization in U.S. history. Mr. Kirsch has performed environmental due diligence and negotiated deal terms on M&A and lending transactions.
Mr. Kirsch was a partner at Shea & Gardner prior to its combination with Goodwin in 2004. Prior to joining Shea & Gardner in 2002, he was a partner at Cadwalader, Wickersham & Taft, which he joined in 1984.