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REPRESENTATIVE EXPERIENCE

Barry M. Hartman

Congressional Investigations

Represent a senior foreign-service officer in a deposition and public testimony in the House impeachment proceedings
Represent company in connection with multiple congressional and DOJ investigations
Represented a major energy company in a congressional investigation related to Middle Eastern energy markiet access in a highly regulated industry
Represented former Deputy Secretary of Interior in public corruption investigation.
Represented trustee in investigation by Senate Permanent Investigations Subcommittee of offshore investment devices.
Represented Independent Review Board in connection with congressional investigation into the anti-biotic, Ketek.

NEPA, Endangered Species and Natural Resources

Save Our County et al v. Defense Logistics Agency, et.al No. 4-20-cv-01267 (SBA) Representing co defendants government contractor in APA Challenge to NEPA analysis in connection with incineration contracts.  (one client dismissed; case still pending)

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.
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.
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.
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.
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.
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.
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.
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.
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.
New Mexico, et al. v. Watkins, et al., 969 F.2d 1122 (D.C. Cir.). Whether the Secretary of the Interior complied with the National Environmental Policy Act when he modified and extended a land withdrawal to permit a test using radioactive waste.
Idaho, et al. v. U.S. Dep’t of Energy, 945 F.2d 295 (9th Cir.). Challenge to environmental assessment prepared by the Department of Energy regarding continued receipt and storage of spent fuel from the demonstration reactor under the National Environmental Policy Act.
Municipality of Anchorage v. United States, 980 F.2d 1320 (9th Cir.). Challenge to memorandum of agreement between the EPA and the Department of the Army under the National Environmental Policy Act.
Griffin v. Yuetter, et al., 1991 U.S. App. LEXIS 21795 (9th Cir.). Challenge to Cleveland National Forest Land and Resources Management Plan under the National Environmental Policy Act.
Lane County Audubon Society v. Cy Jamison, et al., 958 F.2d 290 (9th Cir.). Challenge to the Bureau of Land Management’s Guidelines for Conservation of the Northern Spotted Owl under the National Environmental Policy Act.
Waterford Citizens’ Association v. Reilly, 970 F.2d 1287 (4th Cir.). Whether the EPA’s Memorandum of Agreement entered into by the Environmental Protection Agency and private parties complied with the National Environmental Policy Act.
Citizens Against Burlington, Inc. v. James B. Busey, IV, 938 F.2d 190 (D.C. Cir.), cert. denied, 502 U.S. 994. Whether an environmental impact statement prepared by the Federal Aviation Administration (FAA) on an application by the Toledo-Lucas County Port Authority was deficient for failure to give detailed consideration to the alternative of having the private operator of the hub remain at its present temporary location in Fort Wayne, Indiana.

Grand Jury and Criminal Trial Experience

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.
Represent a senior energy executive in a federal grand jury investigation in Puerto Rico
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.
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.
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.
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.
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.
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.
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.
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 Grand Jury Investigation (Texas; Oklahoma; Kansas). Advised large oil pipeline company regarding criminal investigation and parallel civil investigation and enforcement arising under the Clean Water Act and relating to alleged oil spills.
In Re Grand Jury Investigation (South Carolina). Represented biotechnical company in connection with grand jury investigation of possible crimes involving weapons of mass destruction.
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.

Supreme Court and Other Appellate-level Litigation

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.
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.
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.
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.
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.
Everett R. Rhoades, M.D. v. Grover Vigil, 508 U.S. 182. Whether the court of appeals erred in holding that statements made in congressional committee reports and hearings on lump-sum appropriations bills, together with general notions of the federal “trust” responsibility for Indians, constitute “law to apply” for purposes of judicial review under the Administrative Protective Act (APA), 5 U.S.C. 701(a)(2), of agency action affecting Indians.
City of Burlington v. Ernest Dague, Sr., 505 U.S. 557. Whether court, in determining a reasonable attorney’s fee award under Section 1002(a) of the Solid Waste Disposal Act, 42 U.S.C. 6972(e), or Section 505(d) of the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. 1365(d), enhance the fee award above the lodestar amount in order to reflect the fact that the attorneys had taken the case on a contingent-fee basis, thus assuming the risk of receiving no attorney’s fees at all.
New York v. United States, 505 U.S. 144. Whether the Low Level Radioactive Waste Act violates the Tenth Amendment to the United States Constitution.
Sangre de Cristo Development Co., Inc. v. United States, 932 F.2d 891 (10th Cir.), cert. denied, 503 U.S. 1004. Whether a party had a compensable property interest in a lease approved by the Secretary of the Interior before the Secretary had complied with provisions of the National Environmental Policy Act.
County of Yakima v. Confederated Tribes and Bands of the Yakima Nation, 502 U.S. 251. Whether Yakima County may impose an ad valorem tax on real property situated within the boundaries of the Yakima Indian Reservation that is owned in fee by the Yakima Nation or individual members of the Yakima Nation; and whether Yakima County may impose a state excise tax on the sale of real property on the Reservation by the Yakima Nation or its members.
Trapper Mining, Inc. v. Manuel Lujan, Jr., 923 F.2d 774 (10th Cir.), cert. denied, 502 U.S. 1057. Whether petitioners’ coal leases, which incorporate the statutory provision, permitted Congress to reduce the readjustment interval from 20 years to 10 years effective at the expiration of the 20-year readjustment period; and whether the 1976 amendments to the statute, 30 U.S.C. 207(a), reduced the readjustment interval of petitioners’ coal leases from 20 years to 10 years at the expiration of the 20-year readjustment period.
Cherokee Nation of Oklahoma v. United States of America, 937 F.2d 1539 (10th Cir.), cert. denied, 504 U.S. 910. Whether the United States breached a duty of “fair and honorable dealings” by making navigational improvements to the Arkansas River that damaged the Cherokee Nation’s tribal property interests.
Ludlow Park Homeowners Associate, Inc., et al. v. County of Westchester, NY, et al., 930 F.2d 909 (2d Cir.), cert. denied, 502 U.S. 813. Whether the district court properly took jurisdiction of this proceeding under the All Writs Act, 28 U.S.C. 1651.
Mesa Operating Limited Partnership v. U.S. Dept. of the Interior, 17 F.3d 1288 (10th Cir.), cert. denied, 502 U.S. 1058. Whether the court of appeals erred in upholding the Department of the Interior’s determination that its regulations require petitioner to pay royalties for natural gas produced on federal leases based on the value of the gas placed in marketable condition, and not on the value of raw gas at the time of extraction.
Foust v. Lujan and Northern Arapaho and Shoshone Indian Tribes of the Wind River Indian Reservation, 942 F.2d 712, cert. denied, 503 U.S. 984. Whether, under 43 U.S.C. 1746, the Secretary of the Interior may correct a patent disposing of public land so as to grant title to land that had been withdrawn from entry (as a powersite reserve) at the time the land was settled, and whether the land at issue – which was conveyed to the United States pursuant to an agreement calling for the government to pay any proceeds derived from sales of the land to Indian Tribes and then was purportedly patented to non-Indians – is properly characterized as “public land” or “Indian land” for purposes of 43 U.S.C. 1746.
The Penn Cent. Corp. v. United States of America, 944 F.2d 164 (3d Cir.), cert. denied, 503 U.S. 906. Whether the confirmation of a railroad company’s reorganization in 1978, under Section 77(f) of the former Bankruptcy Act, 11 U.S.C. 205(f) (1976), bars statutory claims against the reorganized company arising from the post-confirmation enactment of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
United States v. John W. Rutana, 18 F.3d 363 (6th Cir.) cert. denied, 502 U.S. 907. Whether 18 U.S.C. 3742(b) requires the government to furnish written certification – no later than the filing of a notice of appeal – that the Solicitor General has authorized an appeal of an otherwise final sentence, and whether the possible impact of the defendant’s imprisonment on his employees warranted a downward departure from the range of imprisonment indicated by the Sentencing Guidelines to a term of probation.
United States and Pueblo of Santo Domingo v. Thompson, 941 F.2d 1074 (10th Cir.), cert. denied, 503 U.S. 984. Whether Section 4 of the Pueblo Lands Act of 1924, ch. 331, 43 Stat. 637, as amended by Section 6 of the Act of May 31, 1933, ch. 45, 48 Stat. 110-111, which on its face bars only actions by Pueblo Indians, implicitly bars this action brought by the United States, in its sovereign capacity, to quiet title to land granted by Spain.
Lewis Stephen Work, et al. v. Tyson Foods, Inc., 921 F.2d 1394 (8th Cir.), cert. denied, 502 U.S. 956. Whether the resolution of an enforcement action brought by the government under Section 309(b) and (d) of the Clean Water Act, 33 U.S.C. 1319(b) and (d), precludes citizens from prosecuting the same violations against the same polluter in a separate citizen suit that had been initiated under Section 505(a)(1) of the Act, 33 U.S.C. 1365(a)(1), prior to commencement of the government’s action.
Wagner Seed Company, Inc. v. George H.W. Bush, 946 F.2d 918 (D.C. Cir.), cert. denied, 503 U.S. 970. Whether the court of appeals properly accorded Chevron deference to the Environmental Protection Agency’s interpretation of the reimbursement provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606(b)(2).
Confederated Tribes of the Colville Reservation v. State of Washington, et al., 938 F.2d 146 (9th Cir.), cert. denied, 503 U.S. 997. Whether the grant of criminal jurisdiction set forth in the Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (commonly known as Public Law 280), permits a State to enforce its civil laws prohibiting speeding and other motor vehicle infractions against Indians on an Indian reservation.
Herman Grey v. United States of America, 935 F.2d 281 (Fed. Cir.), cert. denied, 502 U.S. 1057. Whether petitioners are entitled by the Salt River Pima-Maricopa Indian Community Water Rights Settlement Act, Pub. L. No. 100-512, 102 Stat. 2549 (1988), to recover money damages from the United States for the alleged deprivation of water rights.
Western Palm Beach County Farm Bureau, Inc. v. United States, 922 F.2d 704 (11th Cir.), cert. denied, 502 U.S. 953. Whether, in an interlocutory appeal from the district court’s denial of petitioners’ motion to intervene, the court of appeals erred by declining to rule on petitioners’ contention, raised for the first time in a filing made after the court of appeals issued its opinion in this case, that this suit was barred on sovereign immunity grounds.
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.
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.
United States v. Bogas, 920 F.2d 363 (6th Cir.). Counsel in first appellate case challenging application of the Federal Sentencing Guidelines for environmental crimes.
Concerned Citizens of Nebraska v. U.S. NRC, 970 F.2d 421 (8th Cir.). Challenges to Nuclear Regulatory Commission regulations of a low-level radioactive waste facility.
Olympic Park Associates v. FERC, Nos. 91-70351, 91-70357, 91-70359 (9th Cir.). Application of the National Environmental Policy Act to relicensing proceedings.
Northern States Power Co. v. The Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th Cir.). Whether the doctrine of tribal immunity bars a suit seeking to enjoin a tribal ordinance regulating the shipment of radioactive fuel as preempted by federal law.
Public Citizen v. Bush, 970 F.2d 916 (D.C. Cir.). Challenge to negotiations of the North American Free Trade Agreement under the National Environmental Policy Act.
McMillan Park Committee v. National Capital Planning Commission, 968 F.2d 1283 (D.C. Cir.). Challenge to National Capital Planning Commission determination, specifying that an amendment enacted by the District of Columbia relating to McMillan Park violated the National Environmental Policy Act.
Norfolk v. U.S. EPA, 960 F.2d 143 (1st Cir.). Whether the EPA’s Supplemental Environmental Impact Statement (SEIS) adequately considered the potential impact of a proposed landfill on existing and potential water supplies; whether the SEIS adequately considered the economic cost of the landfill and alternatives to it; and whether the SEIS adequately considered the alternative criteria of “equitable distribution of regional responsibility.
Northern Alaska Environmental Center, et al. v. Lujan, 961 F.2d 886 (9th Cir.). Challenge to three environmental impact statements prepared by the National Park Service relating to mining operations in three Alaska national parks.
In Re Vasquez, Guererro and Compton v. Commonwealth of Pennsylvania, 788 F.2d 130 (3rd Cir.). Represented Commonwealth in matter relating to relationship between Bankruptcy Act and obligation to repay benefits under public welfare statutes.
Peak v. Department of Labor and Industry, Unemployment Compensation Board of Review, 501 A.2d 1383 (Pa.). Represented Commonwealth in matter relating to authority of Board of Review to reverse findings of fact made by a hearing officer based upon a differing assessment of the credibility of witnesses.
Leber v. Pennsylvania Department of Environmental Resources, 780 F.2d 372 (3rd Cir.). Represented Commonwealth in matter relating to the status of a state as an “operator” within the meaning of Section 703 of the Surface Mining Control Reclamation Act of 1977, 30 U.S.C. § 1293 (1982).

Internal Investigations

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 Criminal Investigation (Texas). Represented diversified manufacturer in connection with criminal investigation arising from disposal of used oil from various facilities.
In Re Criminal Investigation (National). Represented photo processing manufacturer in multifacility, national environmental criminal investigation relating to voluntary disclosure by company.

Non-litigation Matters

General Counsel to American Pyrotechnics Association.
General Counsel to Council on Endangered Species Act Reliability.
Provided background analysis and briefing to multiple investment companies, hedge funds and similar organizations regarding Gulf oil spill.
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.
Advised international glass manufacturer regarding requirements of the state law toxics in packaging statutes, and related enforcement issues arising under Barriers to Trade Act.
American Council on Education. Represented association of higher education institutions regarding environmental compliance issues.
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.
Developing corporate compliance programs (environmental and otherwise) for biotechnology, manufacturing, utility and natural resource companies and related presentations to senior corporate management.
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.
Advised several clients with respect to Superfund reform issues.

Eminent Domain and Fifth Amendment Takings

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.
Lucas v. South Carolina Coastal Commission, 505 U.S. 1003. Counsel for amicus curiae United States on whether the application of South Carolina’s 1988 Beachfront Management Act to petitioner’s beachfront lot constituted a taking of property for which payment of compensation is required by the Fifth Amendment.
Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 513 U.S. 1109 (1995). Whether denial of permit under section 404 of Clean Water Act constituted a regulatory taking for which just compensation is due.
Loveladies Harbor v. United States, 28 F.3d 1171 (Fed. Cir. 1994). Whether denial of permit under section 404 of Clean Water Act constituted a regulatory taking for which just compensation is due.
Sangre de Cristo Development Co., Inc., et al. v. United States, cert. denied, 503 U.S. 1004 (1992). Whether a party had a compensable property interest in a lease approved by the Secretary of the Interior before the Secretary had complied with provisions of the National Environmental Policy Act.
Whitney Benefits, Inc. v. United States, 926 F.2d 1169 (Fed. Cir. 1991). Whether prohibition against mining contained in legislation constituted a legislative taking for which just compensation was due.
Lucas v. South Carolina Coastal Commission, 505 U.S. 1003, 112 S. Ct. 2886 (1993). Whether the dramatic effect on the economic value of private party brought about by the operation of state law effectively denying the ability to develop the property, accomplished a taking of private property under the Fifth and Fourteenth Amendments requiring the payment of just compensation.

Civil Trial and Enforcement Litigation

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.
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.
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.
Counseled pipeline operators in nationwide Clean Water Act enforcement action.
United States v. Exxon Corp. (Alaska). Led criminal and civil investigation and prosecution following the Exxon Valdez oil spill.
United States v. Rockwell International Corp. (Colorado). Oversaw Clean Water Act and Resource Conservation & Recovery Act criminal investigation, prosecution and sentencing of Department of Energy contractor at Rocky Flats facility.
Elk Run Coal Company v. United Mineworkers of America (S.D. W.Va.). Represented company in damage action arising from secondary boycott activities.
Canterberry, et al. v. Roberts, et al., (S.D. W.Va.). Represented plaintiffs in civil rights action prosecuted on behalf of non-union employees.
Falcon Coal Company v. Department of Interior (D.D.C.). Challenged “interpretative rule” issued under the Surface Mining Control and Reclamation Act.

Challenges to Agency Action (Non-enforcement)

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).
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.
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.)
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.
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.
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.

Maritime Industry

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.
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.

Pharmaceutical/Healthcare Industry

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).
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.
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 Orphan Drug Designation. Represented manufacturer in challenge to FDA denial of orphan drug designation; denial reversed.

Energy & Commodities Industry

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.)
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.

Manufacturing Industry (Chemical, Steel, Recycling)

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.
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.
United States v. Alcoa, Inc., No. 4-99-CV-61-AS (N.D. In.). Represented aluminum manufacturing company in a § 309 Clean Water Act enforcement action brought by the United States Environmental Protection Agency, which raised the novel question of whether § 309(b) of the Clean Water Act may be used to impose CERCLA-type remedies for sediment remediation in navigable waters; case settled.
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.
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.
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