REPRESENTATIVE EXPERIENCE
Barry M. Hartman
In Re Orphan Drug Designation. Represented manufacturer in challenge to FDA denial of orphan drug designation; denial reversed.
In Re Grand Jury Investigation (Florida). Represented publicly traded company in grand jury investigation arising from allegations of improper disposal of hazardous waste; prosecution declined.
Rhode Island Lobstermen’s Association adv. Ekloff Marine, (D. R.I.). Represented owner of oil in criminal investigation arising from 1996 oil spill; owner not implicated. Also, represented the seafood and fishing industry in connection with claims for damages sought pursuant to the Oil Pollution Act, as a result of damages caused by the 1996 North Cape oil spill.
In Re Great Meadows National Wildlife Refuge. Representing adjacent landowner in connection with challenged to decision by wildlife refuge to construct boardwalk on Refuge without first complying with NEP and Refuge Act requirements.
In Re Criminal Investigation (National). Represented photo processing manufacturer in multifacility, national environmental criminal investigation relating to voluntary disclosure by company.
Advised a large oil pipeline company regarding a criminal investigation and parallel civil investigation and enforcement arising under the Clean Water Act relating to alleged oil spills.
Represent company in connection with multiple congressional and DOJ investigations.
Represent a senior foreign-service officer in a deposition and public testimony in the House impeachment proceedings.
Represented a major energy company in a congressional investigation related to Middle Eastern energy market access in a highly regulated industry.
Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984 (6th Cir.), 121 F.3d 106 (3rd Cir.). Challenged actions by the United States Environmental Protection Agency that denied a request for redesignation of an attainment area under the 1990 Clean Air Act, based on violations of the Clean Air Act and the Small Business Regulatory Enforcement and Fairness Act.
Outside Ethics Counsel to the Chesapeake Regional Coalition 2012 seeking to bring the 2012 Olympics to the Washington/Baltimore Region. Developed Ethics Structure for submission of the Washington, DC 2012 Bid City Proposal.
Blandford v. United States, 540 U.S. 1177 (cert. denied, February 23, 2004). Represented individual in Petition for Certiorari, seeking review of an Eleventh Circuit decision affirming the conviction of four individuals for violations of the Lacey Act raising issues of the interaction between U.S. and foreign law.
General Counsel to Council on Endangered Species Act Reliability.
Prepared comments on behalf of several companies to the United States Sentencing Commission Advisory Committee regarding its proposal for sentencing guidelines applicable to corporations convicted of environmental offenses.
United States v. Olin Corporation, 107 F.3d 1506. Amicus curiae on behalf of seventeen members of Congress and the Washington Legal Foundation, addressing whether the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is retroactive and is applied consistent with Congress’ Commerce clause authority.
The Steel Company v. Citizens for a Better Environment, 523 U.S. 831. Amicus curiae brief on behalf of the Washington Legal Foundation, in support of Petitioner, that the Emergency Protection and Community Right to Know Act does not authorize citizen suits for wholly past violations of that law.
City of Alexandria v. Slater, 198 F.3d 862 (D.C. Cir. 1999). Amicus curiae in successfully defending the Federal Highway Administration’s decision to approve a new major bridge construction project near Washington, DC against challenges brought under the National Environmental Policy Act, the Transportation Act and the National Historic Preservation Act.
Represented manufacturer of FIFRA-regulated substances in connection with challenge to EPA activities with respect to the use of certain data when evaluating the risks associated with certain pesticides during the re-registration process. Advised several public companies with respect to disclosure of potential environmental liabilities in connection with SEC filings.
Save Our County et al v. Defense Logistics Agency, et.al No. 4-20-cv-01267 (SBA) Representing co-defendant government contractor in APA Challenge to NEPA analysis in connection with incineration contracts (one client dismissed; case still pending).
United States v. John Cota (No. CR-08-0160) (N.D. Ca.). Represented pilot of Cosco Busan in criminal proceeding arising from Cosco Busan spill in San Francisco Bay.
Counseled pipeline operators in nationwide Clean Water Act enforcement action.
General Counsel to American Pyrotechnics Association.
Represent a senior energy executive in a federal grand jury investigation in Puerto Rico.
Medusa Corporation v. United States Environmental Protection Agency (D.C. Cir.). Represented company in Petition for Review of Boiler and Industrial Furnace Rulemaking under the Resource Conservation and Recovery Act. Matter settled.
In Re Grand Jury Investigation (Pennsylvania). Represented large steel manufacturer in grand jury investigation (along with parallel civil enforcement proceeding) arising from alleged pattern of NPDES violations at several facilities in two states; prosecution declined.
In Re Criminal Investigation (Texas). Represented diversified manufacturer in connection with criminal investigation arising from disposal of used oil from various facilities.
Allegheny Regional Health System v. Veritus Medicare Services, (PRRB Case No. 05-1976). Challenge to interpretive rule of the CMS as an invalidly promulgated regulation. (Challenge upheld by Provider Reimbursement Review Board).
Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984 (6th Cir.), 121 F.3d 106 (3rd Cir.). Challenged actions by the United States Environmental Protection Agency that denied a request for redesignation of an attainment area under the 1990 Clean Air Act, based on violations of the Clean Air Act and the Small Business Regulatory Enforcement and Fairness Act.
Sierra Club v. EPA, No. 00-2206 (CKK/JMF) (D.D.C.). Represented a partnership of public officials and private business leaders opposing a lawsuit filed by environmental groups challenging the EPA’s redesignation of the Pittsburgh, Pennsylvania area to attainment status.
Kleissler v. United States Forest Service, 183 F.3d 196 (3d Cir.). Represented a coalition of businesses, schools and others in defending against efforts to enjoin implementation of the Forest Management Plan for the Allegheny National Forest; obtained intervenor status for its clients; and was able to have all claims dismissed, either by the District Court or on appeal at the Third Circuit.
Advised several clients with respect to Superfund reform issues.
Medusa Corporation v. EPA (D.C. Cir.). Represented company in Petition for Review of Boiler and Industrial Furnace Rulemaking under the Resource Conservation and Recovery Act. Matter settled.
New Jersey v. Long Island Power Authority, 30 F.3d 403 (3rd Cir.). Challenge to plan for shipment of fuel to Pennsylvania utility brought under the National Environmental Policy Act, the Coastal Zone Management Act, and the Atomic Energy Act.
United States v. Borden Chemicals & Plastics Operating Limited Partnership, Civil Action No. 94-440-1-2 (M.D. La.). Led negotiations on behalf of a specialty chemicals manufacturer in multimedia enforcement action alleging violations of the Clean Air Act, the Employee Protection and Community Right to Know Act (“EPCRA”), and seeking site-wide RCRA corrective action. Government sought $15 million plus disgorgement of profits; case resolved for $3,500,000 in penalty plus Supplemental Environmental Projects and unprecedented dispute resolution procedures.
Advised a variety of clients with respect to the environmental aspects of transactions, including a publicly held limited partnership selling 80 fast food restaurants nationwide; a national company in connection with potential acquisition of wastewater facility; an estate selling former landfill site; and a limited partnership selling interest in an industrial facility.
In Re Grand Jury Investigation (New Jersey; Louisiana). Represented publicly traded specialty chemical manufacturer in federal grand jury investigation (and parallel civil enforcement proceeding) arising from the alleged improper storage, labeling, handling, and exportation of hazardous materials and hazardous wastes. Prosecution declined.
Developing corporate compliance programs (environmental and otherwise) for biotechnology, manufacturing, utility and natural resource companies and related presentations to senior corporate management.
United States v. Horsehead Industries, Inc., No. 3: CV-98-0654 (M.D. Pa.); Viacom International Inc. v. Admiral Insurance Co., No. SOM–L–1739-99 (Somerset County, NJ); Paramount Communications Inc. v. Horsehead Industries, Inc., No. 125931/93 (Supreme Court, New York County); Horsehead Industries, Inc. v. Paramount Communications Inc., 258 F.3d 132 (3d Cir.). Lead counsel on multiple litigations relating to claims for remediation costs at CERCLA sites, including claims for indemnification under Asset Purchase Agreement; cost recovery claims under CERCLA; contribution claims under CERCLA; and claims for coverage under insurance policies; successfully obtained preliminary injunction against the United States to preclude enforcement of Unilateral Administrative Order.
In Re Special Investigation (Tennessee). Retained by Audit Committee of Board of Directors to investigate potential environmental compliance and related record keeping issues.
Zinc Corporation of America v. EPA, No. 97-1734 (D.C. Cir.). Challenged regulations implementing Phase II of Title IV of the Clean Air Act of 1990 relating to sulfur dioxide emissions from certain industrial sources. Successfully resolved litigation when EPA agreed to withdraw the final rule and repromulgate regulations, effectively exempting client from program.
American Trucking Ass’n v. Browner, 175 F.3d 1027 (D.C. Cir.)., reh’g granted in part and denied in part, 195 F.3d 4 (D.C. Cir. 1999), aff’d in part and rev’d in part, sub. nom. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001). Represented the Small Business Survival Committee, the Native American Business Association and Judy’s Bakery in this successful challenge to certain National Ambient Air Quality Standards promulgated under the federal Clean Air Act regulations.
Mortgage Bankers Association. Represented mortgage banking clients in connection with evaluation of whether certain Katrina-related relief programs funded under special appropriations complied with the National Environmental Policy Act and related environmental analysis obligations contained in regulations of t he Department of Housing and Urban Development.
In Re Grand Jury Investigation (Louisiana). Representing environmental compliance official of fertilizer manufacturer in connection with Clean Air Act, related criminal investigation and grand jury proceeding.
Advised international glass manufacturer regarding requirements of the state law toxics in packaging statutes, and related enforcement issues arising under Barriers to Trade Act.
Consortium of Independent Review Boards adv. Department of Health and Human Services. Challenge to final HHS action relating to Federal Advisory Committee Act. (Agency altered position making suit unnecessary).
Represented Independent Review Board in connection with congressional investigation into the anti-biotic, Ketek.
In the Matter of Apothecus Pharmaceutical Corporation, EPA Docket No. CWA 02-2004-3301. Represented manufacturer in connection with enforcement action relating to discharge in public owned treatment work.
City of Santa Fe, New Mexico. Advising the City of Santa Fe with respect to issues arising under the National Environmental Policy Act, the Endangered Species Act, and the Federal Land Policy and Management Act in connection with applications to construct and operate a surface water diversion project on the Rio Grande River in the Santa Fe National Forest.
In Re Grand Jury Investigation (South Carolina). Represented biotechnical company in connection with grand jury investigation of possible crimes involving weapons of mass destruction.
American Council on Education. Represented association of higher education institutions regarding environmental compliance issues.
In Re: United States Gen. New England, Inc. Brayton Point Station, Appeal No: NPDES 03-12 (Environmental Appeals Board, No. 03-12). Advisory counsel regarding appeal of state and federal decisions governing permit conditions that imposed extensive compliance and monitoring obligations. Represented energy company in connection with issues relating to permits and other authorizations and approvals issued by Bureau of Land Management, Corps of Engineers, Forest Service, and Bureau of Reclamation under various federal laws.
Croplife America, et al. v. EPA, (No. 02-1057) (D.C. Cir.). Challenged validity of agency policy governing use of human data as an invalidly promulgated regulation. (Policy vacated.)
Florida Department of Environmental Protection in Southeastern Federal Power Customers Inc. v. Corps of Engineers, et al., 301 F. Supp. 2d 26 (D.D.C. 2004), reversed, 514 F.3d 1316 (D.C. Cir. Feb 05, 2008). Counsel to Florida DEP in dispute over water rights allocation issues relating to the Apalachicola-Chattahoochee-Flint River (“ACF”) Compact, as well as issues under the National Environmental Policy Act, the Endangered Species Act, the Water Supply Act and the Flood Control Act.
In Re Doctors Research Group, FIFRA 01-2003-00 (2003). Counsel to medical device manufacturer in enforcement action alleging that FDA-approved antimicrobial medical device is required to be registered as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act.
In Re Grand Jury Investigation (Missouri). Represented company and officers engaged in asbestos monitoring and testing activities under government contract; investigation involved allegations of falsified documents under the Clean Air Act by subcontractor; after company and individuals were named as targets, prosecution was declined.
United States v. Mark David Radley (No. 09-20699) (5th Cir.). Representing individual in defending government appeal following dismissal of indictment for alleging conspiracy, wire fraud, manipulation and attempted manipulation under the Commodity Futures Trading Act and Title 18; (Indictment dismissed; dismissal affirmed on appeal, Jan. 27, 2010.)
Friends of the Earth v. Gaston Copper Recycling Corporation, No. 3:92-2574 (D. S.C.). Representing company in connection with decision by United States to intervene for purposes of enforcement civil penalty judgment arising from citizen suit brought under Resource Conservation and Recovery Act.
Southeast Land Develop. Assoc. L.P. v. D.C., 2005-cv-01413, 2005 WL 3211458 (D.D.C. Nov. 1, 2005). Challenged Mayor’s action in taking private property for a professional baseball park as an authorized public purpose for which the power of eminent domain could be exercised.
Southeast Land Develop. Assoc. L.P. v. D.C., 2005-cv-01413, 2005 WL 3211458 (D.D.C. Nov. 1, 2005). Whether the Mayor’s action in taking private property for a professional baseball park constituted an authorized public purpose for which the power of eminent domain could be exercised when enabling legislation contained preconditions for the exercise of that authority and such preconditions had not been met.
In Grand Jury Investigation (California). Advised owner and CEO of closely held company engaged in metal finishing operation regarding criminal investigation, indictment and sentencing issues arising under Clean Water Act and RCRA.
Represented former Deputy Secretary of Interior in public corruption investigation.
In Re Grand Jury Investigation (Missouri). Represented two former senior managers of dairy operation in connection with investigation into alleged manipulation of Class III milk market in violation of Commodities Exchange Act. Prosecution declined.
National Wildlife Federation adv. Fednav et al. (2009) Represented Canadian shipping company served with notice of citizen suit under the Clean Water Act for failure to have an NPDES permit for the discharge of ballast water in the Great Lakes. After a number of meetings with the group and the US Department of Justice, the group was persuaded to withdraw the notice prior to filing a formal complaint.
Village of Barrington, et al v. Surface Transportation Board (No. 09-1073) (D.C. Cir). Representing Village of Barrington in NEPA challenge to decision of Surface Transportation Board to permit transaction resulting in significant rerouting of rail traffic from the City of Chicago to its perimeter.
United States v. Saturn Chemicals, Inc., Polysat, Inc., and Darryl Manuel, No. 08-cv-03537-AET-TJB (D. N.J.). Represented defendants in CERCLA cost recovery action. As a result of assertions and third party defenses, discovery of questionable governmental conduct, and actions to include third parties, following pre trial mediation the matter settled with the clients paying approximately 1./3 of the original claim.
Canal Barge Co., Inc. v. United States, No. 10-1410 (S.Ct.) Filed amicus curiae brief in support of petition for certiorari on the issue of whether venue provision in Article III can be determined based on the location of a vessel, regardless of where the conduct giving rise to the criminal charges occurred.
In Re Special Investigation (Alaska). Retained by Board of Directors of Alaska Native Corporation to investigation certain business practices of executives of subsidiary relating to general operations and compliance with small business regulations.
In Re Grand Jury Investigation (Washington, DC). Represented former agency employee in connection with investigation into alleged violations of post employment restrictions. Matter resolved administratively.
In re Aiken County, Ferguson, et al. v. Barack Obama, et al., 645 F.3d 428 (D.C. Cir. 2011). Representing businessmen challenging decision by President to abandon development of Yucca Mountain as a permanent repository for high level nuclear waste, in violation of the Nuclear Waste Policy Act, National Environmental Policy Act, and Administrative Procedures Act. Slip Op., July 1, 2011.
Provided background analysis and briefing to multiple investment companies, hedge funds and similar organizations regarding Gulf oil spill.
United States v. Adams Brothers Farming Inc., No. 00-74409 (C.D. Ca). Represented farm and executives in Clean Water Act enforcement action alleging that operation of farm constituted unlawful filling of waters of the United States without a section 404 permit. Case settled; farm continues in operation. In Re Criminal Investigation (California). Represented individual and small farming entity in investigation alleged violations of Clean Water Act and Endangered Species Act in California. Prosecution declined.
United States v. Frank (E.D.N.Y.). Co-counsel for individual owners of oil recycling and sludge disposal company; six-week trial involving counts under the Toxic Substance Control Act (PCB labeling, storage and disposal) and Title 18 (conspiracy to defraud an agency of the United States). Clients acquitted of all charges.
Represented trustee in investigation by Senate Permanent Investigations Subcommittee of offshore investment devices.
