0001 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 2 REGION 5 3 ____________________________________________________ 4 In the Matter of: 5 BEHNKE LUBRICANTS, INC. MENOMONEE FALLS, WISCONSIN, 6 Respondent, 7 Docket No. FIFRA-05-2007-0025. 8 _____________________________________________________ 9 VOLUME I 10 3/31/08 11 12 Proceedings had and evidence taken, 13 beginning at 10:46 a.m., March 31, 2008, at the 14 Waukesha County Courthouse, 515 West Moreland 15 Boulevard, Room 350, Waukesha, Wisconsin before 16 Ms. Barbara Gunning, Administrative Law Judge, to 17 whom the matter in difference between the parties 18 has been submitted. 19 20 21 22 23 24 25 0002 1 A P P E A R A N C E S 2 MS. BARBARA GUNNING, Administrative Law 3 Judge, 1200 Pennsylvania Avenue, N.W., 4 Washington, DC 20460. 5 U.S. EPA, Associate Regional Counsel, 6 Region 5, 77 West Jackson Boulevard, Chicago, 7 Illinois 60604-3590, by MS. NIDHI O'MEARA, MR. 8 JAMES J. CHA and MR. ERIK H. OLSON, appeared on 9 behalf of the EPA. 10 McILNAY & BUTTON, LTD., 1150 Washington 11 Street, Grafton, Wisconsin 53024-1916, by MR. 12 BRUCE A. McILNAY, appeared on behalf of Behnke 13 Lubricants. 14 15 I N D E X 16 WITNESS EXAMINATION PAGE 17 JEFFREY SAATKAMP Direct by MR. CHA 48 18 Cross by MR. McILNAY 65 19 JOSHUA RYBICKI Direct by MS. O'MEARA 80 Cross by MR. McILNAY 97 20 Redirect by MS. O'MEARA 117 21 ROBERT BONACE Direct by MR. OLSON 130 Cross by MR. McILNAY 201 22 Redirect by MR. OLSON 216 Recross by MR. McILNAY 220 23 24 25 0003 1 E X H I B I T S 2 EPA EXHIBIT OFF'D RECEIVED 3 Complainant's Exhibit 1A 64 78 Complainant's Exhibit 3 140 222 4 Complainant's Exhibit 4 148 222 Complainant's Exhibit 5 152 222 5 Complainant's Exhibit 6A 178 222 Complainant's Exhibit 6B 179 222 6 Complainant's Exhibit 8A 94 94 Complainant's Exhibit 8B 94 94 7 Complainant's Exhibit 8C 94 94 Complainant's Exhibit 9 168 175 8 Complainant's Exhibits 10, 11, 12 12A, 13 174 175 9 Complainant's Exhibit 14A 188 188 Complainant's Exhibit 14B 187 187 10 Complainant's Exhibit 15 214 214 Complainant's Exhibit 16 128 128 11 Complainant's Exhibit 16A 128 128 Complainant's Exhibit 33, 34 188 188 12 13 (Original Exhibits were sent with the original 14 transcript.) 15 (The original transcript was sent to the EPA.) 16 17 18 19 20 21 22 23 24 25 0004 1 P R O C E E D I N G S 2 JUDGE GUNNING: Good morning. The 3 hearing is now open in the matter of Behnke, 4 that's B-E-H-N-K-E, Lubricants, Inc., docket 5 number FIFRA, that's for Federal Insecticide 6 Fungicide and Rodenticide Act, we use the acronym 7 FIFRA, 05-2007-0025. 8 My name is Barbara Gunning. I'm the 9 United States Administrative Law Judge assigned 10 to the United States Environmental Protection 11 Agency. 12 Counsel, could you please identify 13 yourself for the record? 14 MS. O'MEARA: My name is Nidhi, N-I-D, 15 as in David, H-I. Last name O'Meara, 16 O-'-M-E-A-R-A. 17 MR. CHA: Thank you, Your Honor. My 18 name is James Cha. Last name is spelled C-H-A. 19 MR. OLSON: Erik Olson, E-R-I-K 20 O-L-S-O-N. 21 MS. O'MEARA: Good morning. Bruce 22 McIlnay, McIlnay & Button on behalf of the 23 Respondent. 24 JUDGE GUNNING: Today is Monday, 25 March 31, and we're in Waukesha, Wisconsin. Now, 0005 1 we had a bit of a rough start here. We're 2 starting, oh, almost an hour and a half late due 3 to the absence of the court reporter but we 4 appreciate you making the effort to get here so 5 promptly, and unfortunately we just checked with 6 the cafeteria in the building, which I think 7 would probably be the best answer for lunch, and 8 they close, I believe, promptly at 1:30 so in 9 order for us to get down there, I think it would 10 be wise to adjourn at 12:30 for lunch. So we're 11 not going to have a whole lot of time to get 12 started. 13 Today we started late to give everyone 14 an opportunity to find the courthouse, etc., and 15 I had planned on beginning tomorrow at 8:30 if 16 that is good with everybody. Yes? 17 MS. O'MEARA: Yes, Your Honor, thank 18 you. 19 JUDGE GUNNING: Now, I don't know what 20 time the courthouse closes. 21 MS. O'MEARA: Allegedly it closes at 22 4:30, but -- 23 MR. McILNAY: Allegedly. 24 MS. O'MEARA: I was told it opened at 25 eight and I found it at 7:30. 0006 1 JUDGE GUNNING: My understanding is we 2 can remain for a while. I don't think they would 3 like us here too late, but I think it's important 4 that we press on and conclude this as quickly as 5 possible. 6 We'll start tomorrow at 8:30 sharp and 7 take a lunch break. There will be several 8 recesses. At any time if someone needs a recess 9 for whatever reason, raise your hand, we'll take 10 a few minutes, especially if the witness needs 11 water or a break. That would not pose a problem. 12 Now, as a general proposition we do -- I 13 do allow open statements but they're strictly 14 discretionary. If parties want to dispense with 15 it, that's fine with me. I just remind you that 16 this is not a jury trial and so you need not make 17 it very elaborate, just get to the point, I 18 guess. 19 The EPA will be afforded the opportunity 20 to put on their full case including 21 cross-examination, redirect, whatever is 22 necessary and then Respondent will be afforded 23 the same opportunity. Rebuttals will be allowed. 24 Needless to say we keep that as directed as 25 possible to what was raised, both in terms of on 0007 1 cross-examination and redirect and also in the 2 rebuttal phase of the hearing. 3 Now, there are a couple motions that 4 came in. There were a flurry at the very end and 5 Complainant, EPA, filed a motion in limine, I 6 believe, and -- to supplement the prehearing 7 exchange. 8 What I'd like to do is hold that in 9 abeyance until we actually get to that point in 10 the hearing. Sometimes it becomes moot. Either 11 the witness is not appearing or it becomes clear 12 that it's not being contested, but as a general 13 proposition, the evidence which they seek to or 14 have as proposed exhibits is allegedly in direct 15 response to Respondent's filing and, therefore, 16 it didn't meet the 15 day deadline set forth in 17 the procedural rules that govern this procedure. 18 MR. McILNAY: If I may, Your Honor. 19 JUDGE GUNNING: Pardon me? 20 MR. McILNAY: If I may, I certainly 21 appreciate holding that in abeyance. My one 22 concern is the two witnesses, they have brought 23 the motion in limine with regard to, have plans 24 to travel here some distance on Wednesday and so 25 if the motion were to be granted, I would like to 0008 1 have time to notify them, so perhaps if we could 2 take it up later in the day tomorrow. 3 JUDGE GUNNING: That would be fine. 4 Quite frankly, I don't plan on ruling in the 5 EPA's favor on the motion in limine, but that 6 does not mean that the testimony will be 7 necessarily full blown. There may be some 8 limitations placed on it is what I anticipate at 9 this stage. 10 Now, the court reporter, we don't have 11 any microphones, and Mr. McIlnay -- am I 12 pronouncing that correctly? 13 MR. McILNAY: You are. 14 JUDGE GUNNING: I'm having a little 15 problem hearing you, and I don't know about the 16 court reporter. There are microphones and I 17 don't know if there are any switches here or if 18 the system is turned on. 19 MR. McILNAY: I'm guessing it's not 20 turned on. 21 JUDGE GUNNING: Maybe at the first 22 recess or lunch break we can check into that. 23 MS. O'MEARA: Apparently somebody is 24 checking on our behalf right now. 25 JUDGE GUNNING: Excellent. If not, I 0009 1 just remind you to try to keep your voices up and 2 if the court reporter has a problem, please 3 notify me as soon as possible. 4 Now, are there any issues you all want 5 to bring up before we begin the hearing? 6 MR. CHA: Yes, Your Honor. Again, just 7 for the record, James Cha for the Environmental 8 Protection Agency. I just want clarification. 9 There was also an earlier Complainant's Motion to 10 Supplement the Preorder Exchange. It was filed 11 on March 12, 2008. These were exhibits which 12 were strictly intended to be used in the event 13 that certain witnesses that Respondent has 14 identified in his Preorder Exchange were going to 15 testify. I assume that we'll deal with that in 16 the same fashion? 17 JUDGE GUNNING: Correct. 18 MR. CHA: Thank you, Your Honor. 19 MR. McILNAY: In response to that, Your 20 Honor, let me suggest that maybe even over the 21 lunch hour, although unfortunately I don't have 22 it with me, I have revised our -- so I can notify 23 counsel, I E-mailed it. You were probably 24 traveling yesterday. There are certain witnesses 25 I can identify ahead of time who will not be 0010 1 attending, won't be on the list. It might make 2 it easier. In general, I have no objection to 3 any of the supplements that they seek to include, 4 even that which was a tad bit tardy. 5 JUDGE GUNNING: Okay. So there will be 6 an assumption at this stage that the supplement, 7 I believe it was received at least at my office 8 March 19th, will be admitted into the record. So 9 you should proceed with that. 10 MR. CHA: Thank you, Your Honor. I 11 apologize. One other procedural matter. Back on 12 I think it was March 7 of 2008 the parties filed 13 a joint set of stipulated exhibits and a joint 14 motion to admit certain of those exhibits into 15 evidence. Does Your Honor want me to read those 16 exhibits into the record? I mean, the exhibit 17 numbers into the record? 18 JUDGE GUNNING: No. I think we can 19 dispense with that by providing those 20 stipulations, written stipulations to the court 21 reporter and perhaps we could even make that an 22 exhibit. 23 MR. CHA: Okay. Perhaps at the next 24 break we will take care of that, Your Honor. 25 JUDGE GUNNING: Okay. 0011 1 MR. CHA: Thank you, Your Honor. 2 MS. O'MEARA: Your Honor, two other 3 items. I'm sorry. 4 JUDGE GUNNING: Sure. 5 MS. O'MEARA: One is I've already 6 informed counsel we do have some of the exhibits 7 that are enlarged so that we can see them in the 8 larger size, so I wanted to inform the court of 9 that. And Mr. McIlnay, I understand, does not 10 have an objection to that. 11 JUDGE GUNNING: The demonstrative 12 exhibits? 13 MS. O'MEARA: They are actually exhibits 14 that are of the labeling and advertising that 15 will be admitted into evidence. 16 And the other item I wanted to mention 17 is, as you can see, on EPA's side we have 18 multiple lawyers, and I just wanted to understand 19 what the rules were with respect to how you 20 wanted to handle objections, etc., so we are all 21 working off the same set of rules. 22 MR. CHA: I -- Just more specifically, 23 for each witness who testifies is the Court's 24 preference that only one lawyer from each side do 25 the speaking whether that be cross-examination 0012 1 and objections or direct examination and either 2 objections and oral responses to objections? 3 JUDGE GUNNING: My preference would be 4 one attorney stays with the one witness through 5 the entire proceeding. Quite frankly, it 6 becomes, it appears, like one is ganging up on 7 the opposition, depending on who has the multiple 8 attorneys, and I find it much smoother and less 9 contentious if we have one attorney who stays 10 with the witness. 11 MR. CHA: Thank you, Your Honor. 12 MS. O'MEARA: Thank you, Your Honor. 13 JUDGE GUNNING: Now, a couple 14 housekeeping matters on my side. First, I want 15 to remind the parties that at any time I am very 16 happy to entertain any settlement discussion. If 17 you would like a brief recess to meet, that would 18 be fine with me. We discussed this momentarily 19 before the hearing and my only request is if the 20 parties were to reach a settlement, which I 21 strongly advocate, is that the parties be able to 22 state on the record that they have a firm 23 settlement. 24 We also have some confidential business 25 information that has been submitted. The 0013 1 prehearing exchange that was submitted to me was 2 handled in accordance with the rules and is 3 locked up in Washington. I don't know who has 4 possession, if anyone, at the hearing and my 5 assumption is that the rules will be followed 6 with regard to that material. 7 MR. CHA: Yes, Your Honor. 8 JUDGE GUNNING: Now, also I just want to 9 bring to everyone's attention, while traveling 10 here last evening one of the witnesses, I'm not 11 quite sure if the person will be an EPA witness, 12 sat next to me on the airplane and other than 13 discussing the weather and -- I think the new 14 baseball stadium in Washington, there was no 15 improper ex parte communication, but I just 16 wanted everyone to know that we did fly next to 17 each other coming out here. 18 Now, as I mentioned before, both parties 19 may make an opening statement if you wish, that's 20 not required, and then we'll go into the direct 21 presentation of EPA's case. 22 MS. O'MEARA: EPA wishes to make an 23 opening statement, Your Honor. 24 JUDGE GUNNING: Okay. 25 MS. O'MEARA: May I proceed? 0014 1 JUDGE GUNNING: Please. 2 MS. O'MEARA: Thank you. 3 JUDGE GUNNING: Now I just want to 4 remind the parties that we're involved in a 5 proceeding that there are some scientific words 6 and/or possibly some formulas, I don't know how 7 familiar the court reporter is with this, but 8 maybe pay attention to see if she's struggling 9 with anything or at a break maybe we can clear up 10 some of the difficulties. 11 MR. CHA: Just for the record, Your 12 Honor, I did provide the court reporter with a 13 list of acronyms. I'm hoping that that is 14 comprehensive as far as the scientific 15 terminology and technical acronyms which any of 16 our witnesses may use, but if there are any that 17 pop up that I haven't anticipated, I will 18 certainly rectify that situation. 19 JUDGE GUNNING: That would be great, 20 thank you. 21 MS. O'MEARA: Thank you, Your Honor. 22 Good morning. Counsels, good morning. My name 23 is Nidhi O'Meara. I'm with the United States 24 Environmental Protection Agency, and I'm honored 25 to be here today to represent the Agency along 0015 1 with my co-counsel Mr. James Cha and Mr. Erik 2 Olson on this matter. 3 The reason why we are here today, Your 4 Honor, is because of labeling, advertising and 5 marketing claims made by Behnke Lubricants, 6 Incorporated, also known as JAX, regarding five 7 lubricants in particular: POLY-Guard FG-2, 8 HALO-Guard FG-2, HALO-Guard FG-LT, Magna-Plate 74 9 and Magna-Plate 78, which all contain Micronox 10 antimicrobial technology. The question today is 11 whether the Federal Insecticide, Fungicide and 12 Rodenticide Act, which is enforced, by the way, 13 solely by the EPA and no other government agency, 14 was triggered when Behnke sold five of its 15 lubricants on 11 different occasions. 16 Now what we do know is a couple of 17 things that Behnke has admitted and that is it 18 has sold and distributed these antimicrobial 19 lubricants on 11 specific occasions as we allege 20 in our complaint. That is not at dispute. And 21 we know that Behnke admits that when it sold 22 these lubricants, they were, indeed, 23 unregistered. That, too, is not at dispute. We 24 even know that Behnke admits that it made 25 antimicrobial claims in its labeling, advertising 0016 1 and marketing, and that, too, is not at dispute. 2 So the underlying question today that 3 remains is are these antimicrobial lubricants 4 pesticides under the definition of FIFRA. And 5 when answering that question, we have to answer 6 one additional question, which is: Are these 7 five lubricants controlling or mitigating pests 8 as that word is defined under FIFRA and 9 interpreted by U.S. EPA. And that, Your Honor, 10 is where the dispute arises. 11 And you will hear experts testify that 12 based on their experience in implementing FIFRA 13 and its regulations, the answer to the question 14 are the five lubricants claiming to control pests 15 is yes. It's yes to POLY-Guard FG-2, it is yes 16 to HALO-Guard FG-2, it is yes to HALO-Guard FG-LT 17 and it is yes to Magna-Plate 74 and Magna-Plate 18 78. It is yes to all five lubricants that they 19 are claiming to control or mitigate pests as that 20 is defined under FIFRA. 21 And you will hear testimony, Your Honor, 22 that there are also similar products out on the 23 market like Behnke's that have followed the rules 24 and have registered with EPA as required under 25 FIFRA, and consistent with this oversight EPA has 0017 1 requested that Behnke also comply. Yet to this 2 day they have refused and that is what brings us 3 to court today. 4 And you will hear testimony that Behnke 5 makes claims that its lubricants contain Micronox 6 technology that, in fact, it is incorporated into 7 the lubricant, it's an inherent part of the 8 lubricant, it cannot be separated from the 9 lubricant. 10 And you will hear that these 11 antimicrobial technology among other things is 12 effective in protecting E. coli, Salmonella, and 13 Listeria. And you will see some of the exhibits, 14 such as this one, which specifically states that 15 it is proven effective against E. coli, 16 Salmonella and Listeria. 17 And you will hear that it is these very 18 types of claims that have triggered EPA's 19 investigation because FIFRA mandates EPA to 20 control the distribution, the sale and the use of 21 pesticides. And in doing so there is a 22 registration process that's in place and FIFRA 23 essentially requires through that registration 24 process the assurance that the pesticides are 25 properly labeled and if used as directed will not 0018 1 cause unreasonable harm to the environment and 2 will protect human health and preserve the 3 environment. 4 Now, Your Honor, I want to be clear that 5 there's no dispute as far as we can see that 6 microorganisms such as Listeria, Salmonella and 7 E. coli are pests as that is defined under FIFRA. 8 The dispute really is where do Behnke's products, 9 where do Behnke's lubricants intend to target the 10 pests. 11 You will hear Behnke's defense that they 12 believe that the lubricants, or they allege that 13 the lubricants target pests on or in processed 14 food. 15 And, Your Honor, I'm sure you're already 16 familiar with 40 CFR 152.5(d) which defines pests 17 and specifically states, that if a pesticide is 18 targeting a pest on -- or a microorganism, excuse 19 me, on or in processed food, it is not subject to 20 FIFRA jurisdiction. 21 You will hear testimony from our 22 witnesses regarding where Behnke's lubricants are 23 intended to target these pests. Is it in the 24 lubricant itself? 25 You will hear testimony that the 0019 1 labeling, and the advertising, and the marketing 2 claims explicitly and implicitly claim that the 3 lubricant -- that the microorganisms are targeted 4 in the lubricant itself indeed, and based on the 5 fact that it's inherently part of the lubricants 6 it -- you can't really get away from that. The 7 lubricants are containing the Micronox technology 8 and the microorganisms are targeted in there. 9 Is it on the equipment? And you will 10 hear testimony that the labeling, advertising and 11 marketing claims imply that the microorganisms 12 being targeted are on the equipment. Let's 13 remember that these are lubricants that are 14 designed to lubricate equipment and when that 15 Micronox comes in contact with that lubricant, 16 that is where the targeting is occurring. 17 Is it in the environment? You will hear 18 testimony that some of the labeling, and 19 advertising, and marketing claims don't specify 20 specifically where the microorganisms are being 21 targeted and as a result imply that it is indeed 22 in the environment. 23 How about what Behnke states? Is it on 24 the food? And you will hear testimony that the 25 labeling, advertising and marketing claims never 0020 1 informed the potential customer that the pests 2 are being targeted on or in food. 3 And you will hear our experts testify 4 that the or in-process food exemption absolutely 5 unequivocally does not apply to Behnke's five 6 lubricants that we're discussing today. 7 And at the end of the hearing, Your 8 Honor, we'll ask the Court to enter an order 9 finding Behnke Lubricants in violation of five -- 10 of FIFRA violation of at least 11 different 11 occasions for the sale and distribution of 12 unregistered pesticides. And we will ask that 13 this Court assess a penalty of $50,050, at least, 14 against Behnke. 15 I want to walk you through, real quickly 16 through some of our witness testimony so you 17 understand how this started, what we found and 18 why Behnke is subject to FIFRA requirements for 19 the five lubricants that we're discussing today. 20 Over the next couple of days you will 21 hear from a number of our witnesses, one of them 22 will include Mr. Jeff Saatkamp. He's an 23 Environmental Enforcement Specialist with the 24 Wisconsin Department of Agriculture. And he will 25 tell you that back in August of 2006, he went to 0021 1 the Menomonee Falls Behnke facility and he -- 2 when he went there, he found actual tubes of 3 POLY-Guard FG-2, and you will see these tubes, 4 and our witnesses will talk about these tubes. 5 And actual tubes of HALO-Guard FG-2, we'll talk 6 about these tubes as well. You will hear that 7 these tubes make certain claims that are 8 antimicrobial in nature. That states things such 9 as the bonus and H1 lubricating grease with 10 Micronox JAX exclusive antimicrobial chemistry 11 possessing true knockdown capabilities and such 12 things as provides Micronox, microbial knockdown 13 performance. 14 You will also hear that when he was out 15 at the Menomonee Falls facility, he collected 16 advertising and marketing materials and that 17 these advertising and marketing materials contain 18 the types of claims we've already talked about; 19 that the Micronox is especially effective in 20 providing protection in the lubricants against 21 Listeria, E. coli and Salmonella. 22 You will also hear from Mr. Terence 23 Bonace, a life scientist in the Pesticide Toxics 24 Compliance Section of U.S. EPA Region 5. He will 25 tell you that he conducted follow-up 0022 1 investigations at customer sites that actually 2 use the lubricants that Behnke sells. And he 3 will tell you that when he went out to a number 4 of these sites, he found identical tubes of 5 POLY-Guard FG-2 just like this one that Jeff 6 Saatkamp found at Behnke's facility. And it had 7 the same sorts of claims on it. Actually, the 8 identical claims. 9 He will also tell you that a number of 10 these facilities he found advertising and 11 marketing materials that had antimicrobial claims 12 on it, and we'll discuss those. And that he 13 found that when he came back and we filed a 14 complaint, before we filed it and after we filed 15 it, that he did some Internet searches on JAX.com 16 and some of their distributor sites and he 17 continued to find, even as recently as several 18 weeks ago, antimicrobial claims relating to these 19 five products. 20 You will hear from one of our experts 21 Mr. Edwards, who is the Chief of the Regulatory 22 Management Branch in the Antimicrobial Division 23 at U.S. EPA. He will first tell you that he has 24 been working with registration of pesticides for 25 over 30 years, and he will tell you that he, 0023 1 that -- he will discuss the EPA registration 2 process involving registration of pesticides and 3 he will testify that he has dealt with countless 4 numbers of FIFRA registration applications and 5 other regulatory matters relating to pesticides. 6 He will talk about his vast experience at the 7 Office of Pesticides and as a result of that 8 experience that he understands the EPA regulatory 9 scheme and he understands the circumstances under 10 which a pesticide must be registered with EPA. 11 He will stress the importance of EPA 12 oversight over antimicrobial pests in particular 13 and the reason he will talk about this is he'll 14 stress that when an antimicrobial pesticide is 15 targeting a pesticide, it is a microorganism that 16 is invisible to the naked eye and the public 17 cannot see it, and EPA is charged with insuring 18 that the product is actually doing what it says 19 it's doing. That is part of our job. 20 And he will testify about just a 21 sampling of the many labeling, advertising and 22 marketing claims made by Behnke. He will tell 23 you that Behnke's intent is critical when 24 determining if lubricants are indeed pesticides 25 and he will tell you in determining that intent 0024 1 he must look at the claims made on the labeling, 2 advertising and marketing to determine Behnke's 3 intent and that based on the labeling, 4 advertising and marketing it is clear that Behnke 5 intended to sell these lubricants as pesticides. 6 He will tell you that pesticide claims 7 alone can and will trigger EPA's jurisdiction 8 over FIFRA. And he will tell you that he and his 9 staff implement the on or in process food 10 exemption, and that based on Behnke's intended 11 use, which is based on its very claims that it 12 makes that we will discuss in its labeling, 13 advertising and marketing, the exemption does not 14 apply to Behnke's lubricants. 15 He will address some of the other 16 defenses that Behnke claims exempted from FIFRA 17 jurisdiction, and he will offer his opinion that 18 not one of these defenses will allow Behnke to 19 do -- to escape FIFRA jurisdiction and certainly 20 not in the context of the widespread explicit and 21 implicit claims that have been made by Behnke 22 that Behnke has already admitted to. And he will 23 also give you examples, again, of other products 24 on the market that are registered as pesticides. 25 Finally, he will offer his opinion that 0025 1 based on Behnke's intended use, based on the 2 implicit and explicit claims made by Behnke, that 3 it is his opinion that POLY-Guard FG-2, 4 HALO-Guard FG-2. HALO-Guard FG-LT, Magna-Plate 5 74, Magna-Plate 78 are all pesticides that 6 require registration. 7 And you will also hear from our expert 8 Dr. Tajah Blackburn, who is a microbiologist in 9 the Product Science Branch of the Antimicrobial 10 Division at U.S. EPA. She will offer her 11 expertise and tell the Court what an 12 antimicrobial pesticide is, what a public health 13 pesticide claim is and why it is so important to 14 regulate these types of pesticides. 15 She will discuss the dangers of E. coli, 16 Salmonella and Listeria and explain why efficacy 17 testing is so critical when public health claims 18 are made. And she will tell you that as part of 19 her duties at EPA, it is her job to review the 20 underlying data of efficacy testing for 21 registration applications of public health 22 pesticides like the ones that come through 23 Mr. Edwards' office. 24 And she will tell you it's part of her 25 job to determine if the pesticides that are 0026 1 making these public health claims are actually 2 doing what they say they are doing based on these 3 efficacy evaluations that are submitted. 4 And she will tell you that based on 5 Behnke's labeling, advertising and marketing 6 claims that its lubricants control Listeria, 7 E. coli and Salmonella. It is her opinion that 8 Behnke is required to conduct an efficacy 9 evaluation that meets EPA testing standards and 10 provides that efficacy evaluation to EPA for 11 review pursuant to the FIFRA requirements. 12 Your Honor, indeed, EPA wants good 13 products that are effective that help with the 14 safety of consumers to be on the market. There's 15 no question about that, but it is our role, we 16 are charged with the role to determine if the 17 products making public health claims are doing 18 what they say they are doing. It is not the 19 independent role of Behnke to make that 20 determination and certainly not without the 21 oversight of EPA. 22 This is Behnke's opportunity to show EPA 23 and its customers that its lubricants that are 24 superior, as they will say, actually do what they 25 claim to do, but they refuse to cooperate and at 0027 1 the end of the day we're left knowing three 2 things: Behnke's lubricants are not registered, 3 Behnke makes claims that its lubricants control 4 disease-causing microorganisms such as E. coli, 5 Salmonella and Listeria and it sells these 6 products with the antimicrobial claims on them or 7 accompanying them. And we are left to draw the 8 only one possible reasonable conclusion there is, 9 that Behnke sold and distributed five different 10 unregistered products, POLY-Guard FG-2, 11 HALO-Guard FG-2, HALO-Guard FG-LT, Magna-Plate 78 12 and Magna-Plate 74 on 11 different occasions in 13 violation of FIFRA, and at that time they 14 contained the Micronox technology. And at the 15 close of this case we will ask this Honor to 16 enter an order that makes a finding against 17 Behnke for both liability and responsibility. 18 Thank you. 19 JUDGE GUNNING: Okay. Thank you. 20 Mr. McIlnay? 21 MR. McILNAY: Thank you, Your Honor. 22 May it please the Court I will not be so 23 elaborate or eloquent as Attorney O'Meara. I 24 think she put her finger on the issue in this 25 case. What are the germs, because if they're, as 0028 1 we claim, they're not pests within the meaning of 2 FIFRA, what are the microorganisms that we're 3 seeking to mitigate or control with the 4 technology that we arrived at? 5 The EPA, with all due respect, I read 6 Mr. Bonace's reports, I've read the reports from 7 Mr. Edwards, I don't see any mention of how much 8 time they've spent in a beef processing plant or 9 a Kraft plant where the cheese, which started all 10 this, splashes up on the gears and, in fact, the 11 grease or oil at issue becomes part of the food. 12 I never once heard Attorney O'Meara 13 refer to the H1 designation that goes back to 14 FDA/USDA oversight of this product for use where 15 it is reasonably likely or may become part of the 16 food. That process charges the FDA with 17 controlling the ingredients of these lubricants 18 so that they're safe for human consumption 19 because it is anticipated they will become part 20 of the food. 21 Now, whether or not the Listeria hits 22 the lubricant and then drops into more food or 23 doesn't seems to me to be debating how many 24 angels can dance on the head of a pin. 25 The one, the one declaration that 0029 1 they've submitted prehearing from any of our 2 customers that said we bought JAX lubricants, the 3 trade name, because of these antimicrobial claims 4 and we're paying a little bit more for it, 5 there's only one out of all the customers they 6 went to see that signed the declaration to that 7 reason. The reason he gives for it is we were 8 concerned about food safety. We had all these 9 recalls for E. coli in hamburgers and that's what 10 they make is ground beef. We're charged by the 11 FDA/USDA, it's in their materials, Mr. Edwards 12 will talk about HACCP, I hope, at least I'll be 13 asking him about it, that the plants control the 14 microorganisms in the food that they process. 15 Now, you will hear testimony from our 16 chemist that -- Mr. Paquette, that everything 17 that is in these products is approved at the 18 levels within which they are in the products by 19 the FDA for human consumption as incidental food 20 additives. And the reason for that is because it 21 is anticipated. I have, unfortunately, some of 22 them, rather graphic video of beef processing 23 plants where the hooks and the carcasses are 24 going across and what's being lubricated are the 25 wheels above the carcasses, and invariably some 0030 1 of this product is going to drop down on those 2 carcasses. 3 What I really believe at the end of the 4 day the evidence is going to show -- Now I'm 5 curious to hear who else has registered this kind 6 of product with the EPA as a pesticide, but I 7 believe Mr. Bonace will testify on 8 cross-examination that, in fact, it was a 9 complaint from a multi-conglomerate that 10 triggered this investigation. They went a 11 different route. They chose to register their 12 solution to this as a pesticide. That they did 13 that doesn't make it a pesticide. They chose to 14 do that. EPA said, yeah, you qualify, we'll 15 register you. That in and of itself doesn't make 16 it a pesticide. They just chose to go that 17 route. But what's curious is how this 18 investigation started just after they did that. 19 What's really going on here Your Honor, 20 when he put that together, is this poor agency is 21 being used for anticompetitive purposes. Our 22 lubricants are competitive. They take us off the 23 market for 18 months at a minimum, if we have to 24 register Micronox to be able -- and this is a 25 curious thing about this case, to be able to 0031 1 refer to it. We can sell our product just the 2 way it's formulated now. Nobody's ever 3 complained about that. In fact, one of the 4 reports from I believe it's the Minnesota 5 Department of Agriculture, told Jennie-O, you can 6 use the product, nothing wrong with the product, 7 it's the claims they make that we're concerned 8 about. 9 I understand and I read Mr. Edwards, and 10 excuse me if it's Dr. Edwards, I read his report, 11 I read his concerns, I read the reason that the 12 EPA chose efficacy testing on certain 13 antimicrobial pesticides versus other pesticides. 14 And what it states, Your Honor, is that the 15 consuming public, the consumer, because germs are 16 invisible generally can't tell whether an 17 antimicrobial claim is valid, whether in truth 18 the product does what it says. 19 You're going to hear testimony from 20 Mr. Paquette that it was Kraft Foods that first 21 brought up this issue. They're not the ordinary 22 consumer. They did substantial testing to prove 23 to themselves that the product did what we 24 claimed it did. It was their results that were 25 published, not ours. 0032 1 The Cal-Chem case out of Minnesota, 2 similar issue arose, what would the consuming 3 public believe the purpose of this product is. 4 And this happened to be towelettes used in a 5 hospital environment, and I have searched, I 6 haven't found what happened in the case 7 subsequent to this, but on a motion for an 8 accelerated decision, a judge, in your position, 9 said in order to determine that, we have to look 10 at the industry involved, who's the intended 11 market. Our intended market, Your Honor, is 12 Tyson Foods, Kraft Foods, Hormel that owns 13 Jennie-O Foods. These aren't people going to the 14 grocery store to buy antimicrobial product to 15 wash their hands with. I don't know if this 16 works, but it -- unfortunately, this hasn't been 17 suggested as a prehearing evidence, but what I do 18 know is I stood and looked at it and there's big 19 red letters antimicrobial, can't find any EPA 20 registration on it 'cause it says it kills the 21 microbes on my hands. The microbes on my hands 22 by FIFRA definition aren't pests. They're not 23 pesticides. This product says it kills microbes 24 on my toilet seat. It has an EPA registration. 25 So Attorney O'Meara is absolutely right. The 0033 1 issue is what are the microbes we're trying to 2 mitigate or control. Well, if there's microbes 3 in the food but the product is applied to the 4 machinery and within the product itself, it's 5 inevitable that it's going to have other contact 6 with other surfaces just as that towelette may 7 have contact with surfaces other than my hands 8 and face. Does that mean that it's not targeted 9 at the microbes in the food? One of the 10 customers that Mr. Bonace went to see, or his -- 11 I believe it was the Minnesota Department of 12 Agriculture, Jennie-O, the gentleman who bought 13 the product said I don't remember this labeling, 14 I don't remember these claims and, quite 15 honestly, I have maybe heard the word Micronox 16 but I don't know what it means. The only one 17 that came up with -- Acme Foods which is part of 18 American Food Groups again, not a typical average 19 household consumer, got the claims, got the 20 materials, all of that's admitted, sent it up to 21 their director of food safety, hey, doctor. They 22 decide to buy this product for food safety 23 purposes, that's what's in his declaration. I 24 hope Mr. Rybicki will be here to testify. 25 Because I'll tell you what's happened since then. 0034 1 My clients will testify that Hormel and 2 Jennie-O after that visit stopped buying our 3 product because somehow they were left with the 4 impression that it contained a pesticide, and who 5 wants to tell their consumers that we're using 6 pesticides that get into the food product? 7 Your Honor, I believe at the close of 8 this case it's going to be a very narrow case 9 because these are unusual circumstances that with 10 appropriate determination as to permissible 11 labeling, and I do have -- I do have qualms about 12 some of our early labeling and claims made that 13 we've changed, that this is just a 14 anticompetitive attempt by a much larger 15 substantial competitor to use their resources to 16 foil us in our attempts to sell our product which 17 by all accounts from the customers we've talked 18 to is superior and it serves no purpose. 19 The efficacy we're talking about very 20 sophisticated customers who don't spend 20 to 21 30 percent more for a product, the same H1 22 product without the antimicrobial with the 23 antimicrobial because it doesn't work. 24 They're going to have USDA/FDA 25 inspections in their plant. There are charts 0035 1 with HACCP to make sure it's safer, they have the 2 labs, they have the science at their disposal to 3 make the decision does this promote food safety. 4 And their answer in the marketplace has been yes. 5 So the efficacy testing, while I certainly 6 understand that in many, many contexts it's 7 necessary, isn't an issue here. Health concerns, 8 not an issue. 9 The FDA has made a determination 10 published in their regulations that these 11 products, these ingredients, these chemicals and 12 Mr. Paquette will confirm that all of our 13 products have them, are generally regarded as 14 safe in foods at the levels at which they use 15 them so public safety is not a concern. 16 Further, we make no claims that the 17 product should be used anywhere else. I'm glad 18 we're going through all of this advertising. 19 Even though there's claims in here, I agree 20 should -- should they have mentioned Listeria, 21 E. coli, Salmonella, no. But when you look at 22 the overall advertising what are they selling and 23 what are they suggesting to the customer; that 24 they take this grease, this oil and clean the 25 plant, use it as a pesticide, use it as an 0036 1 antimicrobial? Not at all. The first thing in 2 almost every one of them is JAX Magna-Plate 74 is 3 a food-grade air line oil component to provide 4 the best air line lubrication performance in all 5 areas requiring USDA H1 food contact 6 authorization. 7 Now there are other grades of these 8 oils, H2, H2 that these food processors, beverage 9 processors can use in other places in their plant 10 because they're not anticipated to become part of 11 the food. And what the evidence is going to show 12 is that the only claims made with regard to 13 antimicrobial properties are with Behnke's H1 14 products, each and every one of the products that 15 Ms. O'Meara identified, are solely H1 products 16 now certified by NSF, a non-governmental 17 organization that has taken up the former role of 18 the USDA, but nonetheless, an independent party 19 that verifies our claims that these are H1 20 compliant products, so human safety is not an 21 issue here. 22 So why are the two agencies overlapping 23 here? What is it that the EPA adds? I suggest, 24 Your Honor, that with both the regulatory scheme 25 in which FDA and EPA collaborated, and many of 0037 1 those documents are in the exhibits that the EPA 2 talked about, what's processed food, where is 3 processed food, if it's in processed food, it 4 continues to be FDA and it's not a FIFRA issue 5 because we're not talking about tests. 6 So what I would focus on in both my 7 cross-examination, my interrogation of their 8 witnesses as well as the presentation of our case 9 is where is this product used, how is it used, 10 what does the consumer believe it's to be used 11 for and is it sold anywhere else? 12 Thank you, Your Honor. 13 JUDGE GUNNING: Okay. Thank you. Now, 14 in an attempt to somewhat streamline this 15 proceeding I'm taking the unusual step of trying 16 to focus the legal discussion early on since both 17 parties did an outstanding job on the opening 18 statements on focusing the issue that is before 19 me, and I understand if either party chooses not 20 to respond to my questions that are more legal in 21 nature, what I'm trying to do is narrow the scope 22 as early as possible so that we can concentrate 23 on the contested issue. So if you don't mind, 24 please indulge me. 25 As I said, if you choose not to discuss 0038 1 it at this stage, I understand and it can be 2 addressed in the posthearing brief, but the 3 question of whether the products identified in 4 the complaint are antimicrobial pesticides under 5 the statutory definition and I alluded to this in 6 the decision denying the Complainant's Motion to 7 Strike the Affirmative Defenses, etc., that was 8 issued on March 5, 2008. And in that decision I 9 observed that Respondent had not responded to 10 EPA's rather persuasive argument concerning the 11 definition of antimicrobial pesticide for 12 registration purposes set forth in Section 3H. 13 And, if possible, I would like to know if that 14 defense is still being pursued, that the fact 15 that it is or is not an antimicrobial pesticide, 16 how that would be exempt from registration or 17 FIFRA jurisdiction? 18 MR. McILNAY: Okay. I will do my best, 19 Your Honor, because I don't quite understand the 20 claim myself. 21 The argument under 3H is that we are 22 subject to 409 of the Federal Food, Drug and 23 Cosmetic Act. That is how Title 21 -- CFR21 24 parts 170 to 182 come into play here. Those are 25 the requirements that we're to make. It's a 0039 1 double negative within the definition of 2 antimicrobial. It says that if you are not 3 exempt or subject to that -- those provisions. 4 JUDGE GUNNING: Understood. 5 MR. McILNAY: So our claim is we're not 6 an antimicrobial pesticide and, in fact, as I 7 pointed out in an affidavit, I believe, or a 8 declaration filed in response to one of the 9 motions, that was a decision or an argument we 10 had made to the Honorable Representative 11 Sensenbrenner of Wisconsin, who then contacted 12 the EPA, and the response we got from the EPA is 13 we're not making a claim that it is an 14 antimicrobial pesticide, it falls within the 15 broader definition of pesticide and, therefore, 16 must be registered. So I'm a little at a loss as 17 to what we're claiming exactly. You know, are we 18 subject to it because we're an antimicrobial 19 pesticide or generally a pesticide? In either 20 case the issue comes down to are we regulated by 21 Section 409 because we are a food, incidental 22 food additive, in which case I respectfully 23 submit then we're not targeting pests within the 24 general definition of Section 2E, is it? 25 MS. O'MEARA: Two double E? 0040 1 MR. McILNAY: But also not an 2 antimicrobial pesticide because that takes us to 3 being regulated under Section 409. 4 JUDGE GUNNING: Assuming arguendo, the 5 products are not antimicrobial pesticides, if you 6 could point to me where there is a provision that 7 says it is, therefore, exempt. 8 MR. McILNAY: From registration? 9 JUDGE GUNNING: Correct. 10 MR. McILNAY: No, I can't. What I have 11 to go back to is the definition of, in FIFRA of 12 pests and therefore, pesticides. 13 JUDGE GUNNING: So if I'm understanding 14 your argument correctly, it appears to be 15 centered on the regulatory definition set forth 16 at 152.5? 17 MR. McILNAY: Correct. 18 JUDGE GUNNING: And the fact that it is 19 or is not an antimicrobial pesticide, recognizing 20 that, getting past the pest definition but more 21 the general concept that it is not an 22 antimicrobial pesticide and, therefore, it, the 23 fact that it is defined as such, it makes it 24 exempt. I'm trying to find the statutory 25 provision that you're -- the defense raises that, 0041 1 the fact that it is not an antimicrobial 2 pesticide by definition means it is exempt unless 3 I misunderstood the defense initially. 4 MR. McILNAY: Okay. The question 5 generally in terms of the need for registration 6 is whether it's a pesticide, antimicrobial or 7 otherwise. 8 JUDGE GUNNING: Right. 9 MR. McILNAY: So we have the pest issue. 10 If we lose at that issue, then it seems to me 11 that we don't get to the antimicrobial issue. 12 JUDGE GUNNING: So there is not further 13 argument that if it were not an antimicrobial 14 pesticide, the fact that it is defined as such 15 makes it exempt, that is not an argument that's 16 being pursued? 17 MR. McILNAY: Correct. I think I 18 understand. 19 JUDGE GUNNING: My understanding is 20 initially, and maybe it was because it was 21 portrayed as such by EPA's briefing that the fact 22 that allegedly it does not meet the definition, 23 not whether or not it's a factual matter involves 24 a pest, but the fact that it does not meet the 25 statutory definition under -- 0042 1 MS. O'MEARA: Two double M? 2 JUDGE GUNNING: -- two double M would 3 make it exempt. 4 MR. McILNAY: Right. No, that's -- 5 that's -- As I understood the EPA's position, it 6 was irrelevant to this enforcement action whether 7 it was an antimicrobial pesticide or not because 8 it's generally a pesticide. If it is determined 9 that it is not a pest that it is targeting, ergo, 10 by what they -- the position they've taken, it 11 cannot be an antimicrobial pesticide, period. I 12 used the reference to the exception from the 13 definition of antimicrobial pesticide that exists 14 for those that are subject to, if I take out the 15 double negative, subject to regulation under 16 the -- 409 of the Federal Food, Drug and Cosmetic 17 Act, by definition they are not antimicrobials, 18 as evidence that congress knew what it was doing 19 when it divvied up the jurisdiction here saying 20 in effect if you are subject to regulation under 21 409 and you have to meet those tolerances, then 22 it's duplicative, a waste of resources to have 23 the EPA as well regulating those antimicrobial 24 products because they're already regulated by the 25 FDA in this specific context where they will or 0043 1 can be. 2 MS. O'MEARA: Your Honor, just so I'm 3 clear, when we responded in our briefing we were 4 responding to that very argument in clarifying 5 the fact that the definition of two double M was 6 not there for the purpose that Mr. McIlnay just 7 described but, rather, for the purpose of 8 determining how long under 3H, Section 3H of 9 FIFRA our office pesticides program has to 10 process a registration application that is an 11 antimicrobial claim -- antimicrobial pesticide, 12 so it didn't have anything to do with exempting 13 antimicrobial pesticide in or out of FIFRA, 2M 14 only talked about timing. 15 JUDGE GUNNING: So, in other words, it 16 informs the decision as to whether this is a pest 17 that is targeted in an unprocessed food? 18 MR. McILNAY: I believe that that is 19 correct. 20 JUDGE GUNNING: Well, I don't want to 21 belabor the point here, it's just I was under the 22 impression there were two distinct arguments. 23 And one was if Respondent were to establish that 24 it is not an antimicrobial pesticide, that 25 because it is identified as a separate entity, it 0044 1 would make it automatically not subject to FIFRA 2 jurisdiction. 3 MR. McILNAY: No. That is not my 4 argument. 5 JUDGE GUNNING: Okay. And I think the, 6 both sides identified the issue that we're 7 targeting here and, obviously, other discussion 8 will inform those facts, and with that in mind, I 9 think what we need to do is focus on that issue. 10 Obviously, there will be some latitude 11 to discussing these other topics, but I think 12 they would be to large extent red herrings if we 13 spend a lot of time discussing what I deem to be 14 extraneous material. And I think you both now 15 are on the same page on that discussion if I 16 understand correctly from your opening 17 statements. 18 MS. O'MEARA: Your Honor, if I may make 19 sure I'm on the same page, are we dispensing then 20 of the argument of two double M being a defense? 21 MR. CHA: Because that's stated in the 22 Answer, Your Honor. It was raised as a distinct 23 defense, and our motion to strike was premised on 24 that. And I guess the question is, is it less 25 direct to the Court than it is to opposing 0045 1 counsel? 2 JUDGE GUNNING: Obviously, it's going to 3 have to be incorporated in the discussion of it, 4 but my interpretation of it is now more not so 5 much as a legal argument, but that it informs the 6 determination of whether the regulatory 7 definition is met. 8 MR. McILNAY: Right. 9 JUDGE GUNNING: Rather than a 10 self-standing argument in and of itself. 11 MR. McILNAY: Correct. Correct. 12 JUDGE GUNNING: Okay. Okay. Now, with 13 that, I guess we can proceed to EPA's direct 14 presentation, and what I'd like to do is remind 15 everyone that we need to pick a good time, about 16 40 minutes from now, that we should break for 17 lunch. And so when it's a convenient time, 18 please let us know. 19 MS. O'MEARA: Okay. 20 JUDGE GUNNING: Do you need a short 21 five-minute recess or are you ready? 22 MR. McILNAY: I would be very 23 appreciative of that. 24 JUDGE GUNNING: That would be fine. So 25 why don't we take a five, at most 10-minute break 0046 1 and then we'll come and start with EPA's direct 2 case. 3 MR. McILNAY: Thank you, Your Honor. 4 MS. O'MEARA: Thank you, Your Honor. 5 (A recess was taken.) 6 MR. McILNAY: We're now back on the 7 record. One housekeeping matter. I just spoke 8 to the clerk who is assessing us. Monday through 9 Wednesday we can stay as late as we want. 10 Thursday and Friday we need to be out of here by 11 5:00, so if we can try to push on Monday, Tuesday 12 and Wednesday, that would be terrific since we're 13 going to have to leave by 5:00 on Thursday and 14 Friday. Now, I don't know the court reporter, if 15 they will be substituting someone. 16 Mr. Cha, if you would like to call your 17 first witness, please? 18 MR. CHA: Thank you, Your Honor. 19 Complainant calls Mr. Jeffrey Saatkamp. 20 S-A-A-T-K-A-M-P. 21 JUDGE GUNNING: One matter we haven't 22 discussed are if any of the witnesses here that 23 are being presented as fact witnesses, I don't 24 know who is who in the courtroom, but if anyone 25 has requested that they be sequestered or -- I 0047 1 recognize that this witness came from outside the 2 courtroom. 3 MR. CHA: Right, Your Honor. Yes. We 4 would request that witnesses who are not either 5 experts or who are not the designated 6 representatives of the respective parties be 7 sequestered. We have two fact witnesses who are 8 being sequestered. The only fact witness who is 9 present in the courtroom is also the Agency 10 representative, Mr. Terry Bonace. 11 JUDGE GUNNING: And prior to the hearing 12 it's my understanding both parties designated one 13 representative who would be allowed to remain in 14 the courtroom during the entire proceeding. 15 And -- 16 MR. McILNAY: Correct, Your Honor. 17 JUDGE GUNNING: Mr. McIlnay, if I could 18 identify -- 19 MR. McILNAY: Certainly. To my 20 immediate left is Eric Peter, the president of 21 Behnke Lubricants and our designated 22 representative for the hearing, and Mr. Troy 23 Paquette, who has been designated an expert 24 witness. So we have no fact witnesses within the 25 courtroom. 0048 1 JUDGE GUNNING: Okay. 2 MR. CHA: Just so the record is clear we 3 do have -- Complainant has its two expert 4 witnesses present, Mr. Dennis Edwards and 5 Dr. Tajah Blackburn. 6 JUDGE GUNNING: Thank you. Sir? 7 JEFFREY C. SAATKAMP, called as a witness 8 herein, having been first duly sworn on oath, was 9 examined and testified as follows: 10 DIRECT EXAMINATION 11 BY MR. CHA: 12 Q Sir, if you could, please state your full name 13 and spell your name for the record? 14 A Jeffrey Charles Saatkamp, S-A-A-T-K-A-M-P. 15 Q Mr. Saatkamp, I'd like to begin with some 16 questions about your education. Do you hold any 17 educational degrees? 18 A Bachelor of Science degree in Agriculture from 19 the UW Madison. 20 Q And when did you receive that degree? 21 A December of 1976. 22 Q Mr. Saatkamp, are you currently employed? 23 A Yes. With the State of Wisconsin, specifically 24 the Wisconsin Department of Agriculture, Trade 25 and Consumer Protection. 0049 1 Q And how long have you worked for that particular 2 office? 3 A It will be 30 years in May. 4 Q Do you hold an official title or position? 5 A My current job title is Environmental Enforcement 6 Specialist, Senior. 7 Q And what are your primary duties? 8 A Primary duties, we are responsible for 9 enforcement of State and Federal pesticide laws, 10 State and federal feed laws, responsible for the 11 State fertilizer, seed, ag line containment and 12 remediation programs. 13 Q And what federal pesticide laws do you enforce? 14 A We work with the Federal Insecticide, Fungicide, 15 and Rodenticide Act known as FIFRA. 16 Q And focusing on your work enforcing the FIFRA 17 statute, what activities do you conduct as part 18 of your work enforcing FIFRA? 19 A As part of our EPA assigned work, it could entail 20 the inspection of producing establishment 21 facilities, distributors, warehouses, marketplace 22 inspections and even possibly retail inspections. 23 Q And when you say producing -- 24 A Pesticides, pesticide products. 25 Q So those would be facilities that would produce 0050 1 pesticide products? 2 A Correct. 3 Q Focusing on your inspections of pesticide 4 facilities, what in general is involved in that 5 kind of inspection? 6 A Basically we would go and look to see that the 7 products manufactured or distributed by that 8 facility have the current and proper EPA required 9 labeling. We look at advertising, promotional 10 sales literature, we look at packaging, where 11 products may be stored. Those types of 12 activities. 13 Q And approximately how many of these kinds of 14 inspections have you conducted in your career? 15 A Over 50. 16 Q Now, after you've completed an inspection of a 17 pesticide-producing establishment how, if at all, 18 do you record what you saw and what you did 19 during the inspection? 20 A Okay. We do have some inspection report forms 21 that we take in with us to the facility, plus I 22 will also put together, I normally would put 23 together a narrative report along with the 24 inspection documents. 25 Q And how often do you prepare a narrative 0051 1 inspection report? 2 A Now I would say always. 3 Q And after you finish the actual physical 4 inspection, when do you normally begin to write 5 the narrative inspection report? 6 A Within a few days after completion of everything. 7 Q Thank you, Mr. Saatkamp. 8 Mr. Saatkamp, are you familiar with a 9 company called Behnke Lubricants, Incorporated? 10 A Yes. 11 Q How did you become familiar with this company? 12 A I was assigned to do a producer establishment 13 inspection at that facility back in 2006. 14 Q So do you know where Behnke Lubricants' place of 15 business is located? 16 A In Menomonee Falls, Wisconsin. 17 Q And have you ever been to that establishment? 18 A Prior to the inspection? 19 Q No, just -- 20 A No. The inspection in August of 2006 was my 21 first visit there. 22 Q And how many times total have you been to the 23 Behnke Lubricants facility? 24 A Two times. 25 Q And when was the first time? 0052 1 A I believe it was August 3rd, 2006. 2 Q And when was the second time? 3 A I believe it was August 11th. August 11th was 4 the second time, yes. 5 Q Now, what was the specific purpose of your 6 August 3rd, 2006 inspection? 7 A We received a request to do a producer 8 establishment inspection by the EPA office out of 9 Chicago. Specifically I was to gather some 10 samples, some product samples and any and all 11 document literature, sales advertising brochures, 12 technical sheets information and some shipping 13 information on -- for specific products. 14 Q And why did you return to the facility later? I 15 believe you said August 11. 16 A On August 11. There was some additional 17 literature materials and information that I did 18 not collect during my first stop that I wanted to 19 get as far as to complete the report. 20 Q Now, before we talk about the actual inspection, 21 I'd like to go back in time a little bit. 22 A Uhm-hum. 23 Q Before you physically went to the Behnke 24 facility, did you conduct any other type of 25 investigation? 0053 1 A Yes. I did a Google search on the Internet. 2 Q What were you looking for? 3 A Basically I was looking for information about the 4 company, what type of products they handled, some 5 history, company history, what kind of 6 advertising sales promotional literature might be 7 available on the Internet just to get some more 8 background information on the company prior to 9 visiting them. 10 Q Were you able to find any such information? 11 A Yes, sir. 12 Q I'd like to turn your attention to the exhibit 13 marked Complainant's Exhibit CX1, lower case 14 letter A. It should be the second document. It 15 should be after Complainant's Exhibit 1. 16 Your Honor, may I approach and assist 17 the witness? 18 JUDGE GUNNING: Yes. 19 THE WITNESS: Okay, here we go. 20 BY MR. CHA: 21 Q If you could, please take a moment and look at 22 that exhibit and let me know when you've had a 23 chance to review it? 24 A All right. 25 Q Do you recognize this exhibit, Mr. Saatkamp? 0054 1 A Yes. 2 Q And what is it? 3 A That is -- those are pages I printed off the 4 Internet from the company's web site. 5 Q And this is probably a question that calls for a 6 very simplistic answer, but how did you print off 7 the pages? 8 A I just pushed print, the print screen on the 9 page, on the two pages. 10 Q Now, I'd like you to look at the page which is 11 Bates stamped EP -- at the lower right-hand 12 corner EPA0057? 13 A Okay. 14 Q Now, when you first saw this, this web page, was 15 there anything that caught your attention? 16 A Well, in the first paragraph there they talk 17 about -- it mentions in an effort to combat 18 Listeria and other harmful microbial agents, etc. 19 etc., and the next paragraph they talked about 20 bacterial contamination, E coli, Listeria, 21 Salmonella, and that these products will deal 22 with those particular organisms. 23 Q Now, if you could turn to the next page Bates 24 stamped near the lower right-hand corner as 25 EPA0058. 0055 1 A All right. 2 Q When you first saw this web page, was there any 3 information that caught your attention? 4 A Yes. Again, they talked about, in one of the 5 paragraphs they talk about the antimicrobial 6 properties of some of their products and that it 7 would specifically kill colonies of bacteria. 8 Q Now, Mr. Saatkamp, let's move on to your first 9 actual physical visit to the Behnke Lubricants' 10 facility. Was there anyone from the company who 11 was present when you actually conducted that 12 August 3rd, 2006 inspection? 13 A Yes. Mr. Troy Paquette. 14 Q Did Mr. Paquette identify his position with 15 Behnke Lubricants? 16 A Yes, he did. 17 Q What did he say? 18 A He's a quality control, quality assurance 19 individual and he also mentioned he dealt with 20 regulatory affairs. 21 Q Now, Mr. Saatkamp, where did you go within the 22 facility during your inspection? 23 A Initially I met with Mr. Paquette, I believe it 24 was in a conference room. It may have been his 25 office, I'm not 100 percent certain, but I met 0056 1 with him initially. And we also did go out into 2 the warehouse manufacturing floor of the 3 facility. 4 Q In the warehouse manufacturing floor, what if 5 anything did you see? 6 A I saw the area where they had their product 7 stored and ready and released for shipment. 8 Q Did you do anything to record or capture what you 9 saw? 10 A Well, I took photographs of my samples. 11 Q Okay. Yes. That was the information I was 12 looking for. Thank you, sir. 13 A Okay. 14 Q Did you collect any other materials? 15 A Yes. I collected some shipping documents and 16 invoices, I obtained some technical data sheets 17 from the firm for the four products I was 18 interested in and also some literature 19 information fact sheets, tech sheets, things that 20 I guess they would provide to potential 21 customers. 22 Q I believe you mentioned earlier you made 23 reference to samples; did you actually collect 24 any objects at the facility? 25 A Yes. I took two physical samples while I was 0057 1 there. 2 Q And who was present when you collected all of 3 these materials? 4 A Mr. Paquette. 5 Q Did you have any conversations with Mr. Paquette? 6 A Yes. 7 Q And did you record or document those 8 conversations? 9 A Yes. 10 Q How did you document those conversations? 11 A Through my notes. 12 Q Did you include the information from your notes 13 in your inspection -- 14 A Yes. 15 Q -- report? 16 Focusing again on the samples that you 17 collected, just for clarity, this -- where were 18 you when you collected the physical samples? 19 A I went out to the actual warehouse manufacturing 20 area where the products were being stored in 21 cartons. 22 MR. CHA: If I could have one moment, 23 Your Honor? 24 JUDGE GUNNING: Yes. 25 BY MR. CHA: 0058 1 Q Mr. Saatkamp, I'm handing you a document -- 2 MR. CHA: And, Your Honor, I will have 3 to mark these at the break. This is a document 4 that should be Complainant's Exhibit 38. They're 5 sheets in our prehearing exchange which identify 6 those exhibits but obviously we provided 7 photographs but not the actual physical samples. 8 Q Mr. Saatkamp, when you have had a moment to look 9 at that, could you just let me know when you've 10 finished? 11 A Okay. All right. 12 Q Do you recognize the object I've handed to you? 13 A Yes. This is one of the physical samples I 14 obtained at Behnke Lubricants on August 3rd. 15 Q And, for the record, which sample is it? 16 A My sample number is 01410-7001. 17 Q And what is the nature of this sample? 18 A The name of it is POLY-Guard FG-2. It's a grease 19 lubricant product. 20 MR. CHA: And, Your Honor, may I 21 approach the witness? 22 JUDGE GUNNING: Yes. 23 BY MR. CHA: 24 Q Handing you another exhibit, and this should be 25 marked Complainant's Exhibit 39 -- 0059 1 A Yes. 2 Q -- do you recognize this exhibit? 3 A Yes. This is the second physical sample I 4 obtained at Behnke Lubricants that day, that same 5 date. My number is 01410-7002. 6 Q And what is the nature of this exhibit? 7 A It's labeled as a HALO-Guard FG-2. Again, 8 another lubricant grease product. 9 Q And could you just explain how is it that you're 10 able to recognize each of these physical samples? 11 A I wrote my -- my sample number on each product, I 12 initialed it, and dated it, and I sealed it up. 13 When I returned to my office. I see my seal on 14 there and tag. 15 Q Now, I believe you mentioned documents. Did you 16 collect any documents while you were at Behnke? 17 A Yes. 18 Q What kind of documents did you actually collect? 19 A Okay. Again, I obtained technical -- I believe 20 they call them technical data sheets, excuse me, 21 basically information fact sheets about these 22 products plus some shipping documents for some of 23 the shipments of some of these products. 24 Q Who provided these documents to you? 25 A Mr. Paquette provided some of them and Ms. Patty 0060 1 Reak also provided me with some of them. 2 Q Was -- Who is Patty Reak (phonetic)? 3 A She is a technical specialist that -- I believe 4 she assists Mr. Paquette and Mr. Peter. 5 Q So she's an employee of Behnke? 6 A Yes, I'm sorry. Yes. 7 Q Now, after you had completed your inspection, 8 what did you do? 9 A After the second day. Are we still on the first 10 day? I'm sorry. 11 Q Well, let's -- 12 A I didn't complete it till after my second visit, 13 I'm sorry. 14 Q You testified earlier you returned to the 15 facility on August 11th, 2006? 16 A Correct. 17 Q And what was the reason for your returning to the 18 facility? 19 A Well, there was certain documentation, I think 20 some technical information sheets that I did not 21 collect initially on the 3rd that upon review of 22 the inspection request from the EPA office I 23 determined that I did not collect all the 24 information that they had requested at that time. 25 Q And were you able to collect that information? 0061 1 A Yes. 2 Q After you had completed the August 11th, 2006 3 inspection, what did you do? 4 A I sealed -- prepped my samples, two physical 5 samples and I started working on my narrative 6 report. I'm going by the information on my 7 narrative report that I started on August 11th, 8 so -- I started to put all my information 9 together for the write-up. 10 Q I'd like to direct your attention to 11 Complainant's Exhibit 1. 12 MR. CHA: Your Honor, may I approach and 13 assist the witness? 14 JUDGE GUNNING: Yes. 15 MR. CHA: Your Honor, this exhibit has 16 already been admitted. It is a subject of our 17 joint stipulation of fact and -- joint 18 stipulations as to exhibits and joint motion to 19 admit exhibits. 20 JUDGE GUNNING: It's Exhibit No.? 21 MR. CHA: Complainant's Exhibit 1. 22 Q Mr. Saatkamp, just briefly, do you recognize this 23 document? 24 A Yes. 25 Q And just could you state for the record what it 0062 1 is? 2 A It's what we call an Activity Report. It's a 3 document that we put together for my office in 4 Madison basically explaining what type of 5 activity I performed at this facility at this 6 time and the general functions, what did I do at 7 this facility, why I did it and what I collected 8 as far as any samples, that type of thing, so 9 it's a general Activity Report for Madison's 10 purposes. 11 Q Okay. And could you turn to the document that 12 are Bates stamped on the lower right hand EPA002 13 through EPA004? 14 A Okay. All right. 15 Q And could you explain just briefly what is that 16 document? 17 A This is the narrative document I put together as 18 part of the inspection process, inspection report 19 to accompany the other documents outlining what I 20 did, who I talked with and what information and 21 materials I gathered during the inspection 22 process. 23 Q I'd like to have you look at the pages that are 24 Bates stamped EPA005 through EPA0026? And you 25 don't have to read it carefully. I just want -- 0063 1 A Okay, yes. 2 Q What is the document that appears on these pages? 3 A These are -- look like information sheets about 4 their lubricant products. 5 Q Do you recognize these as the ones you testified 6 about earlier? 7 A Yes. 8 Q I'd like to turn your attention to the pages at 9 EPA0027 through EPA0036? 10 A All right. 11 Q Do you recognize those particular documents? 12 A Yes. 13 Q What are they? 14 A Those are invoices I obtained while I was at 15 Behnke Lubricants. These are invoices showing 16 their shipments of some of their products, some 17 of their lubricant materials. 18 Q And finally, Mr. Saatkamp, I'd like to turn your 19 attention to the pages that are in laminated 20 plastic folders EPA053 and EPA054. 21 A Fifty-three and 54? 22 Q Yes. 23 A All right, yes. I'm there. 24 Q If you could look at both of those pages and let 25 me know when you've had a chance to look at them? 0064 1 A All right. All right. 2 Q Do you recognize these exhibits? 3 A Yes. 4 Q What are they? 5 A Those are photographs I took of my 6 environmental -- of the physical samples that I 7 obtained at Behnke Lubricants on August 3rd of 8 2006. They show the containers, cartons that 9 they were in and the individual tubes. 10 Q Now, Mr. Saatkamp I'd just like to ask you 11 briefly about your narrative report. How well 12 did you remember the inspection when you started 13 writing the narrative report? 14 A I would say very well. 15 Q And how accurately does the narrative report 16 describe your inspection of the Behnke facility? 17 A Very accurately. 18 Q And how accurately does the narrative report 19 describe the conversation with personnel at the 20 Behnke facility? 21 A I would say very accurately. 22 MR. CHA: Thank you, Your Honor. At 23 this time I have no further questions for the 24 witness. I would move to admit Complainant's 25 Exhibit 1A which is not subject -- not a subject 0065 1 of the stipulation. 2 MR. McILNAY: I would like to 3 cross-examine the witness before you rule on 4 that? 5 JUDGE GUNNING: I'm having a problem 6 hearing you. 7 MR. McILNAY: I'm sorry. I would like 8 to cross-examine the witness on that before you 9 rule, Your Honor, on the motion? 10 JUDGE GUNNING: All right. 11 MR. CHA: Thank you, Your Honor. Your 12 Honor, could I help the witness with the binder 13 'cause we have a little technical malfunction. 14 THE WITNESS: Some of them were coming 15 out. Sorry. 16 JUDGE GUNNING: All right. 17 THE WITNESS: Thank you. 18 CROSS EXAMINATION 19 BY MR. McILNAY: 20 Q You still have the binder in front of you, sir? 21 A Yes, sir. 22 Q Mr. Saatkamp, you gave a brief description of 23 your educational and work history. Does the 24 Wisconsin Department of Agriculture and Consumer 25 Protection do any work on behalf of the United 0066 1 States Food and Drug Administration? 2 A Yes, sir. 3 Q And in that capacity, have you done any 4 inspections for the FDA or -- 5 MR. CHA: I'm going to object, Your 6 Honor. I think this goes beyond the scope of the 7 witness' testimony. He's a fact witness and 8 talked about an EPA inspection. 9 MR. McILNAY: I'm just going to let you 10 rule. I'm trying to get some background here and 11 put him into context. 12 JUDGE GUNNING: I'll allow it. 13 THE WITNESS: My work in particular, 14 sir, deals with the animal feed programs and 15 medicated feeds and related issues such as the 16 pet food contamination scare from a year ago, and 17 the BSE, Mad Cow Disease situation. That is the 18 extent of our work with the US Food and Drug 19 Administration. 20 BY MR. McILNAY: 21 Q Do you have any particular expertise in the 22 Internet or how web pages are produced? 23 A Expertise? I'm not sure exactly what you mean by 24 that, sir. I mean, I have a lot of experience 25 using it, if that's what you mean. 0067 1 Q Let me ask you a little question about Exhibit 2 CX1A, the web pages you printed. 3 A Okay. 4 Q First of all, whose site was this printed from? 5 A If it wasn't Behnke's, it was a link to Behnke's. 6 Q Well, I note at the upper left-hand corner it 7 says meatpoultry.com? 8 A Yes. 9 Q Does that refresh your recollection? 10 A Yes. I see that, yes. 11 Q Now, you said you did a Google search to find 12 this; is that right? 13 A Yes. 14 Q When you've done Google searches in the past, 15 have you ever noticed that some of the pages that 16 come up are referred to as cached pages? 17 A Yes. 18 Q Do you know what that means? 19 A Cache means I believe it's in a storage area on 20 the web, Internet. I could be wrong. I'm not 21 certain, sir. 22 Q Well, I direct your attention to the top of the 23 page meatpoultry.com July 21, 2004; do you see 24 that? 25 A Yes. 0068 1 Q You did your search or at least you printed this 2 on 6/23/06, correct? 3 A Yes. 4 Q Do you know how long that page had been up? 5 A Well, it appears since July 21st, 2004. 6 Q Do you know if it was currently there or cached? 7 A That I couldn't answer, sir. All I know, it was 8 linked to the Behnke -- from the Behnke site. 9 Q Well, I thought you found it through a Google 10 search. 11 A I found Behnke through that Google search. 12 Q And, likewise, do you know who's published the 13 second page, EPA0058? 14 A It appears to be Behnke Lubricants. 15 Q But you don't have any firsthand knowledge as to 16 who published that page, correct? 17 A No. 18 Q Now, you, as part of your inspection, you 19 acquired certain invoices, samples of invoices 20 that are included in Complainant's Exhibit 1, 21 which is admitted into evidence. Did you specify 22 which invoices you were interested in or -- 23 A Yes. 24 Q -- what number? 25 A Yes. 0069 1 Q And did you specify the products that you wanted? 2 A Yes. 3 Q Am I correct, however, that you personally did 4 not contact any of the customers identified in 5 these invoices beginning at EPA0027 -- 6 A That is correct, sir. I did not contact any of 7 those companies. 8 Q -- to 34. Ever? 9 A No, sir. 10 Q With regard to the Behnke investigation? 11 A No, sir. 12 Q So you don't know what motivated them to buy 13 these products, correct? 14 A Correct. 15 Q Nor do we know whether or not they ever saw the 16 web pages in Complainant's Exhibit 1A; is that 17 correct? 18 A Whether who knew that, sir? 19 Q Any of the customers. 20 A I would have no way of knowing that, no. 21 Q Now, your web search, what I can gather from 22 CX1A, is that you printed those pages in July of 23 two -- or June of 2006. 24 A Yes, sir. 25 Q Do you have any independent recollection as to 0070 1 when you received the requests from the EPA to 2 inspect Behnke? 3 A I will have to refer to some documents that I 4 believe are included in the record here. 5 Q Do you know where they are in the record? 6 MR. CHA: Could counsel repeat the 7 question? 8 MR. McILNAY: Could you read it back, 9 please? 10 (The last question was read.) 11 THE WITNESS: That was the memo from -- 12 MR. CHA: I don't believe there's a 13 document in the record which would provide that 14 particular information. 15 JUDGE GUNNING: How about we'll let the 16 witness, if he has recollection, answer. 17 THE WITNESS: I don't have specific 18 recollection offhand. I'm going to make an 19 assumption here, which is dangerous, I understand 20 that, but it's probably sometime in June or maybe 21 May because that's -- that's when I did that 22 Google search on the company in June, so I'm 23 making a little bit of a guess here. It's 24 probably not too far from that time, but I don't 25 know for certain. I'm really not certain. So 0071 1 that's what I'd have to say. 2 BY MR. McILNAY: 3 Q Was your inspection on August 3rd of 2006 4 announced or unannounced? 5 A It was unannounced. 6 Q You received some form of documentation, I 7 understand from your testimony, as to what it is 8 EPA was particularly interested in? 9 A They -- In the request for the inspection, they 10 listed the four products that they asked me to 11 gather information on. 12 Q All right. 13 A Is that answering your question? 14 Q But that was in writing? 15 A Yes. 16 Q All right. And you testified on direct 17 examination that you were particularly to focus 18 on labeling and advertising? 19 A Among other things. 20 Q To get product samples? 21 A Yes. 22 Q Labeling and literature. Anything else? 23 A Shipping documents. 24 Q Shipping documents. All right. Do you recall 25 who authored the document that you were sent? 0072 1 A I'm not certain. No, I'm not certain at this 2 point. 3 Q Now, the two physical samples, I don't know where 4 they went. 5 MS. O'MEARA: They're right there. 6 BY MR. McILNAY: 7 Q And this is new to me. I don't do any criminal 8 law. I've never gotten to hold one of these 9 things in a plastic bag before. 10 A No problem. 11 Q You acquired these on August 3rd, 2006? 12 A Yes. 13 Q Did you inquire of anyone at Behnke as to what 14 the use of this lubricant was? 15 A I'm sure we discussed that. 16 Q Do you have any independent recollection of what 17 you discussed? 18 A Not specifically, sir, no. 19 Q And that goes for both the POLY-Guard FG-2 and 20 the HALO-Guard FG-2, correct? 21 A Yes. 22 Q Do you have any independent knowledge of what a 23 food-grade lubricant is? 24 A Not really, no. Other than it's something that 25 can be used in the food processing facility. 0073 1 Q And you also testified on direct that eight days 2 after your initial visit between August 11th 3 and -- or, I mean, between August 3rd, 2006 and 4 August 11th you went back to gather more 5 materials that you had apparently neglected to 6 get on the first visit? 7 A Correct. 8 MR. CHA: I believe that's 9 mischaracterizing the witness's testimony the 10 word neglecting. 11 JUDGE GUNNING: Well, it's cross so I'll 12 allow it. 13 BY MR. McILNAY: 14 Q Specifically what materials were you looking for? 15 A Fact and technical sheets for the conveyor glide 16 series product lines, which I obtained which were 17 marked as documentary samples. 18 Q So those are part of CX1? 19 A CX1. 20 Q They're attached to your original report and 21 narrative. 22 MR. CHA: Your Honor, I don't want to 23 interrupt counsel's Cross. 24 MR. McILNAY: If you could find them. 25 THE WITNESS: You're referring again to 0074 1 the August 11th visit, sir? 2 BY MR. McILNAY: 3 Q Correct. 4 A That was -- I collected what we call a 5 documentary sample fact sheet on the conveyor 6 glide series lubricants. 7 Q And you included those samples as part of your 8 report then to the EPA? 9 A Yes, sir. Yes. 10 Q To whom did you direct your report when it was 11 completed? 12 A When I complete my reports, I send everything 13 into our Madison office and generally it would be 14 first reviewed by my supervisor and then our 15 section chief. 16 Q So other than the written documentation that you 17 received about the inspection, did you have any 18 communication with anyone from the EPA directly? 19 A Prior to the inspection? 20 Q Let's start there. 21 A No. 22 Q After the inspection? 23 A Not till I was contacted by representatives of 24 U.S. EPA. 25 Q When was that? 0075 1 A Boy, I don't remember. I don't know. I did 2 receive a copy of the Complaint that they filed. 3 Q But did you discuss -- 4 A No. 5 Q All right. 6 A No. 7 Q You went to a very fine university and the School 8 of Agriculture is a good one there. Other than 9 the inspections, and you said you've done some 50 10 of these, do you make any -- do you have any 11 input into the decision as to whether or not 12 there has been a violation and a prosecution 13 should pursue? 14 A Do I have input as to whether or not there's been 15 a violation? 16 Q Correct. 17 A Based on the information that I gathered and the 18 facts that we collect during an inspection and 19 samples that we may or may not collect during 20 inspection, based on that information, I may have 21 a recommendation or suggestion that, yes, it 22 appears to be violative. But the final decision 23 is not made by me. 24 Q Very good. Thank you. 25 MR. McILNAY: Nothing further, Your 0076 1 Honor. 2 JUDGE GUNNING: Okay. 3 MR. CHA: I have one more, Your Honor. 4 JUDGE GUNNING: Yes, but based on your 5 Cross do you have an objection to the 6 admissibility of this document? 7 MR. McILNAY: I do, Your Honor. First 8 of all, its relevance. I guess we stipulated to 9 the authenticity so relevance -- He can't show a 10 time frame that's relevant. He can't testify to 11 a time frame relevant to the invoices at issue. 12 The web site may have been there for who knows 13 how long it is in a cached web site and he 14 happened to find it on Google that day. That 15 doesn't mean it was current as of June of 2006. 16 Nor can he tie it to the sales at issue here that 17 any of the customers at issue here have reviewed 18 those web sites, so I don't know how it's 19 relevant. 20 MR. CHA: Your Honor, just in response, 21 it's relevant for two purposes. First, it 22 provides background as to -- First, it provides 23 background as to what Mr. Saatkamp did to prepare 24 for his actual physical inspection. It also is 25 relevant because it shows how widespread and how 0077 1 easily accessible these claims were and which, if 2 anything, does go to the gravity of the violation 3 which is a component of the penalty calculation. 4 JUDGE GUNNING: Okay. But with regard 5 to the specific allegations made here, I'll 6 afford you an opportunity for redirect if -- 7 MR. CHA: I was going to ask him a few 8 questions, Your Honor. 9 JUDGE GUNNING: Okay. 10 REDIRECT EXAMINATION 11 BY MR. CHA: 12 Q I will ask them from here. 13 Mr. Saatkamp, if you could look at CX1A 14 again -- I apologize for making you flip through 15 this yet again. 16 A No problem. All right. 17 Q Let's look at the first page. 18 A All right. 19 Q First, when you began your Google search, do you 20 recall what search terms you used? 21 A Probably just typed in Behnke Lubricants. 22 Q And did you actually find the web site belonging 23 to Behnke Lubricants? 24 A Yes. 25 Q And how did you find this particular web page 0078 1 which has a different web address? 2 A It appears that there was a direct link from 3 Behnke to this particular page. 4 Q Would the same be true about the web page on -- 5 that follows that? 6 A Yes. 7 Q Thank you, Mr. Saatkamp. 8 MR. CHA: Your Honor, I would submit 9 that any arguments defense counsel has go to the 10 weight, not the admissibility. Counsel has 11 raised a bunch of speculation. Maybe, perhaps, 12 he will have testimony to put in this context, 13 but this witness was able to find it very easily. 14 To the best of his recollection, it was found in 15 the web pages as a link from the Behnke 16 Lubricants' web site, so as far as admissibility 17 goes, the relevance is established, authenticity 18 has been stipulated to. It should be admissible. 19 JUDGE GUNNING: Okay. I will admit the 20 document, so please mark 1A as received; however, 21 with the caveat that cross-examination raises the 22 probative value that will be accorded the 23 document. 24 MR. CHA: Thank you, Your Honor. I have 25 no further questions for Mr. Saatkamp. 0079 1 JUDGE GUNNING: Would you like to 2 reserve this witness? 3 MR. CHA: If defense counsel is finished 4 with cross-examination, I would ask that 5 Mr. Saatkamp be excused. 6 MR. McILNAY: No objection, Your Honor. 7 JUDGE GUNNING: Okay. Thank you very 8 much for your testimony. 9 This would be an ideal time to break for 10 lunch. It will just give us enough time to get 11 down to the cafeteria. Would 45 minutes be 12 cutting it too close or do you think that's 13 adequate? 14 MR. McILNAY: That's fine. 15 JUDGE GUNNING: So how about if we shoot 16 to come back here at 1:35. 17 MS. O'MEARA: Thank you, Your Honor. 18 JUDGE GUNNING: Very good, thank you. 19 Please be seated. Don't worry about that. 20 (A lunch recess was taken.) 21 JUDGE GUNNING: EPA, are you prepared to 22 call your next witness? 23 MS. O'MEARA: Yes, Your Honor. EPA 24 calls Mr. Josh Rybicki to the stand. 25 JOSHUA M. RYBICKI, called as a witness 0080 1 herein, having been first duly sworn on oath, was 2 examined and testified as follows: 3 MS. O'MEARA: May I proceed, Your Honor? 4 JUDGE GUNNING: Please. I just remind 5 the witness to keep his voice up or maybe -- 6 MS. O'MEARA: We do have a microphone 7 now. 8 JUDGE GUNNING: -- or move forward a 9 little. 10 DIRECT EXAMINATION 11 BY MS. O'MEARA: 12 Q Good afternoon, Mr. Rybicki. Can you please 13 state and spell your name for the record? 14 A My name is Joshua Mark Rybicki, J-O-S-H-U-A, 15 M-A-R-K, R-Y-B-I-C-K-I. 16 Q Thank you. And can you tell us what city and 17 state you live? 18 A I live in Pulaski, Wisconsin. 19 Q Mr. Rybicki, can you tell us what your occupation 20 is? 21 A Inventory Control for American Foods Group. 22 Q And how long have you been with American Foods 23 Group? 24 A Ten years. 25 Q And where is American Foods Group located? 0081 1 A In Green Bay, Wisconsin. 2 Q Is this particular facility called the Acme 3 facility? 4 A Yes, it is. 5 Q And what type of facility is the Acme facility? 6 A It is a beef slaughter house and fabrication 7 facility. 8 Q I'm sorry, can you speak up? 9 A And fabrication facility. 10 Q And when did you first join American Food Group? 11 A February of 1998. 12 Q And what is your -- What was your first job there 13 when you started at Acme? 14 A Like a warehouse assistant. I just put boxes 15 away and received inventory, entered it into the 16 computer, and anything they needed me to do I 17 took care of, really. 18 Q How long were you in that position? 19 A About seven or eight months. 20 Q And after that were you promoted to another 21 position at Acme? 22 A Yes. The position that I'm currently in was held 23 by someone else and he ended up leaving the 24 company and they asked me if I wanted to do it, 25 and -- they didn't ask me, I just kind of filled 0082 1 in and I've been there permanently since. 2 Q And can you tell the Court what you do in that 3 position, what your duties are? 4 A I -- my title is Inventory Control. I purchase 5 products for the plant, anything from tables and 6 chairs, nuts and bolts, MRO products, which would 7 include greases, oils, transmissions. Anything 8 in a day-to-day operation of the plant I need -- 9 the plant needs to run I order. 10 Q Can you tell us what MRO is? 11 A Maintenance repair and operation. Basically 12 anything to keep the plant up and running in 13 terms of having the mechanical staff having to be 14 able to do their job. 15 Q Okay. And has the -- I'm going to direct you to 16 the Behnke Lubricants we're talking about. Has 17 the Acme facility purchased JAX POLY-Guard FG-2 18 with Micronox? 19 A Yes, it has. 20 Q And has it purchased JAX Magna-Plate 74 with 21 Micronox? 22 A Yes, it has. 23 Q And has it purchased JAX Magna-Plate 78 with 24 Micronox? 25 A Yes. 0083 1 Q And how was the Acme facility first introduced to 2 these products? 3 A I had met with a salesperson from Behnke 4 Lubricants, Mike Keller. He had paid a visit to 5 us, and stopped in, and just basically made a 6 sales call. 7 Q And why did you end up speaking with him in 8 particular? 9 A I meet with a lot of those people that are 10 selling that sort of product. It's kind of -- 11 You know, I take care of a lot of that stuff. I 12 meet with the salespeople, collect all the 13 information and pretty much take it and present 14 it to whoever needs -- who would be interested in 15 it. 16 Q Do you recall about when Mr. Keller made this 17 call? 18 A Several years ago. 19 Q And what was his sales pitch regarding JAX 20 products with Micronox? 21 A That it would help reduce -- in our case being a 22 meat packing facility, it would help us control 23 bacteria. 24 Q And did he indicate to you where the bacteria 25 would be inhibited as a result of the Micronox 0084 1 technology? 2 A Within the grease, my understanding of their 3 conversation when we stopped by. 4 Q Did he indicate -- Actually, strike that. 5 Is the Acme plant concerned with 6 bacteria such as E. coli, Salmonella and 7 Listeria? 8 A We're very concerned with that. That's one of 9 our -- Yes. 10 Q And where can that bacteria be found in the 11 facility? 12 A Can be found anywhere. On the equipment, on the 13 people, on the animals as they come in. 14 Equipment as it comes in. 15 Q And is the Acme plant concerned with bacteria 16 that comes from meat that's being handled? 17 A Yes. Yes. 18 Q Are there any other sources of bacteria as -- 19 A From people and from the animals themselves, the 20 equipment, the outside world. I mean, there's a 21 potential for cross-contamination anywhere. 22 Q Did the Behnke salesperson ever tell you that the 23 lubricant should be applied directly on meat? 24 A No. 25 Q Did he ever tell you that the lubricant had to 0085 1 touch the meat before it began to work? 2 A That was not my understanding, no. 3 Q What is your understanding of how the Micronox 4 antimicrobial technology in the lubricant was 5 going to keep bacteria counts down? 6 A My understanding of it was when we have the 7 grease and the oils and we're using them in our 8 production facility, the grease is either put on 9 a bearing or the lubricant, like, the oils are 10 sprayed on the chains, on overhead chains or 11 inside gear boxes. And my understanding was 12 that -- and a lot of our understanding, not just 13 myself but some other colleagues when I had 14 presented this information to them, was that the 15 oil itself is a point of where the bacteria would 16 not -- would be inhibited. 17 Q And was this a timely sales pitch for you and 18 Acme? 19 A Yes. For us at American Foods Group it was. We 20 had gone through the industry -- The industry had 21 gone through the Mad Cow Disease scare and there 22 were numerous E. coli recalls, not just for us 23 but, I mean, everyone, and food safety was really 24 an issue that was brought to the forefront. And 25 for us, I mean, we were doing anything and 0086 1 everything -- we were told to do anything and 2 everything we can within reason to help prevent 3 the spread of bacteria from the food to our 4 customers. 5 Q And, Mr. Rybicki, do a lot of salespeople trying 6 to sell you lubricants for the Acme facility come 7 to meet with you to discuss their products? 8 A Yes. 9 Q Okay. Was there something unique about the sales 10 pitch that was made by Mr. Keller? 11 A Yeah. I mean, the antimicrobial properties and 12 what he had outlined and shown us, and he had 13 left some sales literature that we looked at and 14 he had shown us, and that's really, you know, 15 what caught our attention. 16 Q Do you remember anything specifically that might 17 have piqued your interest in the information that 18 he was giving you, as you mentioned, and things 19 that he was telling you? 20 A Yes. He had shown us some sales literature and 21 it had some graphs depicting their products' 22 antimicrobial performance versus their 23 competitors. 24 Q And what JAX products in particular did he talk 25 to you about? 0087 1 A The HALO-Guard FG-2 and the Magna-Plate 78. 2 Those two products I recall, yeah. 3 Q Did he talk to you about the JAX products 4 generally as well? 5 A Yeah, he did. Yeah. I mean, basically the whole 6 food-grade line was what he had spoke to me about 7 because we're a food plant, obviously. 8 Q Now, you said that he presented you with 9 literature containing information about these JAX 10 products with Micronox? 11 A Yes. 12 Q Did he go through this literature with you at 13 all? 14 A Yeah. He had highlighted some areas and shown me 15 specific sections. 16 Q You said that there was a graph that stood out in 17 your mind? 18 A Yeah. 19 Q I'm going to show you what is marked as People's 20 Exhibit, I think it's -- Thank you. CX8B, EPA 21 number 249. Is this one of the graphs you 22 recall? 23 A Yes. 24 Q And based on this, what is your understanding of 25 where the microorganisms were being controlled? 0088 1 A Well, right here I mean you can see on the end it 2 say POLY-Guard FG-2. 3 Q Right here? 4 A Yeah. It shows basically zero or almost zero, I 5 can't really tell from this distance, on all 6 three of the Listeria, E. coli and Salmonella. 7 And their competitor A and competitor B would be 8 I'm assuming other -- To me that's other oils 9 that's like Mobil or Shell or whoever. 10 Q And, again, why were the antimicrobial benefits 11 of these lubricants significant to you and Acme? 12 A I mean, it just is. I mean, safety is a priority 13 for us. 14 Q What did you do after Mr. Keller left you this 15 information regarding the JAX Micronox products 16 that day? 17 A I took it to a couple people in our office. I 18 took it to Dr. Ali Mohseni. He still is the Vice 19 President of Food Safety, and at that point, at 20 that time it was anything that was coming into 21 the plant we needed to take to him and look at in 22 terms of any new products. And we had shown it 23 to him, and I explained what I was explained and 24 we talked about it and shown a few other people. 25 Q And based on this, did you -- Based on your visit 0089 1 from Mr. Keller, did you then begin ordering JAX 2 POLY-Guard FG-2 with Micronox on behalf of Acme? 3 A Yes. 4 Q And did you order JAX Magna-Plate 78 with 5 Micronox? 6 A Yes. 7 Q And JAX Magna-Plate 74 with Micronox? 8 A Yes. 9 Q And at the time the salesperson spoke with you, 10 were you using some other sort of lubrication for 11 the equipment -- 12 A We were, yes. 13 Q -- in the Acme facility? 14 How were these lubricants performing for 15 the Acme facility? 16 A Just fine. 17 Q What was the reason then for the switchover to 18 the JAX products with Micronox? 19 A We felt that the antimicrobial properties of the 20 product would benefit us and that it was one more 21 thing we could do to help prevent -- 22 Q Did you pay a premium for these products as 23 compared to the other lubricants? 24 A The prices were 20 to 30 percent higher than we 25 were currently paying for a product that did the 0090 1 same, same thing as a lubricant. 2 Q Why were you willing to pay more? 3 A It was -- We were directed to find ways to 4 improve food safety, and we looked at, you know, 5 the costs of paying 20 to 30 percent more for a 6 product versus the costs of a recall. And the 20 7 to 30 percent of a product is -- was very minor 8 compared to recall. 9 Q Okay. 10 A A product recall. 11 Q How much concern is there over bacteria and 12 harmful microorganisms at the Acme facility? 13 A There's a lot of concern. We have people that 14 that's their job. 15 Q Can you tell the Court how many shifts the Acme 16 facility has in a day? 17 A Sure. The Acme facility is a beef slaughter 18 facility. There is a -- The slaughter they only 19 run for one shift and that could be anywhere from 20 eight to 10 hours depending on how many cattle 21 they have that the buyers bring in. The boning 22 side, or the fab side, runs two shifts, and then 23 there's a cleanup shift that they call the third 24 shift, which kind of really isn't, but it starts 25 after the harvest is done and they clean the 0091 1 harvest floor and they move on to the boning room 2 because by the time they're done cleaning the 3 harvest room, they can start cleaning the boning 4 room 'cause they're done. 5 Q When you say harvest, what do you mean? 6 A The kill floor, slaughter area. 7 Q And what is done -- What is the common practice 8 of Acme during the cleanup shift? 9 A They use 180-degree water. We use chemicals that 10 are supplied to us, and we rinse, and scrub, and 11 then sanitize and rinse again usually. That's 12 pretty much the way they do it. 13 Q What is the purpose of using these products for 14 the cleanup phase? 15 A To clean and also get rid of all the bacteria 16 that can be transferred to meat. 17 Q I'm going to direct your attention to May 8, 18 2007, did Mr. Terry Bonace from U.S. EPA come 19 visit you on that day? 20 A Yes, he did. 21 Q And what, if anything, did Mr. Bonace give you 22 relating to the Behnke JAX products with 23 Micronox? I'm sorry. 24 What, if anything, did you give him? 25 A I had given him some purchase orders showing that 0092 1 I had, indeed, ordered the product. 2 Q And if you could, please, open your book right up 3 in front of you to Complainant's Exhibit 8A, 4 please? Do you recognize this? 5 A Yes, this is my handwriting right here. 6 Q And what is it? 7 A It's the outside of the envelope that I had put 8 some sales literature in that I mailed to Terry. 9 Q And can you turn to the next page, please? And 10 do you recognize that? 11 A Yes. 12 Q And what is that, please? 13 A It's the opening page to the, some literature 14 that Mr. Keller had left with me. 15 Q And can you tell the Court what the title of that 16 is? 17 A This says JAX Lube Guard Program Preliminary 18 Plant Lubrication Survey for Green Bay, 19 Wisconsin. 20 Q And, Mr. Rybicki, can you tell us where you 21 originally got this literature from? 22 A This was in a filing cabinet in my office. 23 Q Where did you get it before you put it in the 24 filing cabinet? 25 A I'm sorry. From Mike Keller. 0093 1 Q And can you turn to Complainant's Exhibit 8B, 2 please? Do you recognize that? 3 A It's the outside of another envelope. 4 Q All right. If you could turn to the next page, 5 please? And can you tell us if you recognize 6 that and what it is? 7 A Yeah. This is some more information that I had 8 found after the facts. I was going through, 9 looking for something in a cabinet and I found 10 some more information that Mike Keller had left 11 with me, and this one outlines the food-grade 12 products that they sell. 13 Q All right. And can you turn to Complainant's 14 Exhibit 8C, please? And can you tell us if you 15 recognize that? 16 A It's the outside of another envelope, yes. 17 Q And turning to the next page, can you tell us 18 what that is? 19 A This is a technology focus for the Micronox 20 technology. Basically it looks like all the, 21 similar information that I had found in the 22 filing cabinet again from Behnke. 23 Q Are these all accurate copies -- First of all, 24 did you send these to Mr. Bonace? 25 A Yes, I did. 0094 1 Q Are they all accurate copies of what you sent to 2 Mr. Bonace? 3 A Yeah. 4 MS. O'MEARA: I'd ask, Your Honor, at 5 this time to move Complainant's Exhibit 8A, B and 6 C into evidence. They've already been 7 authenticated previously and I believe that the 8 relevance has been demonstrated. 9 MR. McILNAY: No objection, Your Honor. 10 JUDGE GUNNING: Please mark 8B and C as 11 received. 12 MS. O'MEARA: Thank you. 13 JUDGE GUNNING: Now, I don't think we 14 have been following any mechanism where the court 15 reporter is marking these documents as received, 16 so -- 17 MR. CHA: We do have a chart that we 18 prepared and we'd be happy to let the court 19 reporter use this. I don't know if it would suit 20 her purposes. Would you want us to actually 21 physically hand her the exhibit? 22 JUDGE GUNNING: Right. The records -- 23 The transcript will receive that the document -- 24 reflect that the document has been received. 25 Normally in the course of the proceeding 0095 1 we mark the exhibits, but I think if the parties 2 at the conclusion of the hearing can get together 3 and -- so we have an accurate listing of what has 4 been received and what has been rejected, that 5 would make the hearing go much more smoothly. 6 MR. CHA: We can do that, Your Honor. 7 MR. McILNAY: I agree. 8 BY MS. O'MEARA: 9 Q Thank you. 10 Now, these three pieces of literature 11 that we just talked about, 8A, 8B, and 8C, what 12 did this literature in its totality tell you 13 about JAX Micronox antimicrobial technology, 14 Mr. Rybicki? 15 A More so this last one here, I mean that 16 specifically outlines the Micronox technology. 17 It told me that if I was to use this product in 18 my production facility, that it would help 19 inhibit the growth of the bacteria within the 20 grease or the oils and anyplace that -- on any of 21 the machinery that we use this on. 22 Q And was this literature in any way ever redacted 23 or revised or revoked by Behnke? 24 A No, it was not. 25 Q Was Acme ever contacted by Behnke to revise any 0096 1 of the antimicrobial claims that were made? 2 A I was not personally contacted. 3 Q Do you know if any other of American's facilities 4 use the JAX Micronox products with -- Sorry, JAX 5 products with Micronox? 6 A Yes, we do. 7 Q How do you know that? 8 A Because I purchase those products for those 9 facilities as well. 10 Q Which facility in particular? 11 A Our 800 University Avenue facility, which is our 12 grinding operation. 13 Q And just to get this clear, what set Behnke's 14 lubricants apart from all the other lubricants? 15 A That it was going to help us control bacteria, 16 meaning E. coli, which is a big concern of anyone 17 in the beef industry, as well as Listeria and 18 Salmonella. 19 Q And why was this a major deciding factor for Acme 20 when it began to order the JAX products with the 21 Micronox? 22 A Because at that time with -- you know, within -- 23 circumstances within the beef industry, it 24 warranted our attention. It was a product that 25 was going to help us. 0097 1 MS. O'MEARA: Thank you. One minute, 2 Your Honor, please? 3 JUDGE GUNNING: Okay. 4 MS. O'MEARA: I have no further 5 questions at this time. 6 JUDGE GUNNING: Thank you. 7 CROSS EXAMINATION 8 BY MR. McILNAY: 9 Q Thank you. Mr. Rybicki, I have my information 10 over here, and I apologize -- If it's okay with 11 the Court if I could -- 12 JUDGE GUNNING: That's fine. Maybe turn 13 the microphone toward you. 14 MR. McILNAY: It's not working. So it 15 just gets in my way. 16 MS. O'MEARA: This one is movable that's 17 by Josh. 18 MR. McILNAY: We'll make due. 19 Q Did you say Pulaski, Mr. Rybicki? 20 A Yes. 21 Q That's just outside of Green Bay for the folks 22 that are -- 23 A Yes. 24 Q -- not from around here. 25 American Food Groups is a subsidiary of 0098 1 a larger entity; is that right? 2 A I guess you could say -- from my understanding we 3 just merged so but, yeah, we probably are. 4 Q And you said -- Well, first of all, within the 5 book there, would you please turn to Exhibit 6 CX16? If you would that consists of apparently 7 six pages. Could you take a look at that for us, 8 familiarize yourself with it? 9 A Okay. 10 Q Is that a facsimile copy of your signature that 11 appears on the last page of Exhibit 16? 12 A Yes, it is. 13 Q And before you signed Exhibit 16, did you read 14 all of the statements contained in Exhibit 16? 15 A Yeah. 16 Q And they're true and correct, to the best of your 17 knowledge? 18 A Yes. 19 Q All right. You indicated in Exhibit 16, as you 20 did on direct examination, that among other 21 things after meeting with Mr. Keller and hearing 22 his pitch for the JAX lubricants you contacted 23 Dr. Mohseni? 24 A Yes. 25 Q Where is Dr. Mohseni located, where does he work 0099 1 from? 2 A In the same office building that I'm in. 3 Q And did you review the literature with 4 Dr. Mohseni? 5 A Yes. 6 Q And is it a fair statement to make that it was 7 Dr. Mohseni ultimately who made the decision that 8 the antimicrobial properties of the product made 9 it worthwhile to purchase? 10 A I mean ultimately we -- I mean, I would say that, 11 yeah. 12 Q It wasn't your decision alone? 13 A It was -- I'm not allowed to make that decision 14 in terms of whether the product can enter the 15 food chain, or food manufacturing chain. 16 Q So in your position is it fair to say that you're 17 given a list of approved products from which you 18 purchase the inventory as it is needed? 19 A Not always, no. 20 Q With regard to -- strike that. Let me go back. 21 You made reference several times during 22 your direct examination to food-grade lubricants? 23 A Yes. 24 Q What is your understanding of a food-grade 25 lubricant? 0100 1 A A food-grade lubricant in terms of what we can 2 use in a beef manufacturing facility? 3 Q Yes. 4 A Needs to be rated H1 in order for it to be used 5 out on the production area. And from what I was 6 told and my understanding is H1 means incidental 7 food contact, meaning that the product can come 8 in contact with the meat, or whatever you're 9 manufacturing, as well as the packaging supplies 10 themselves. 11 Q And the products that American Food purchases for 12 the Acme plant from Behnke Lubricants, those are 13 all H1 rated products? 14 A Yes. 15 Q And do you continue to buy those same products 16 today? 17 A Yes. 18 Q You were asked a question -- I don't recall which 19 exhibit this is. 8B, I believe, page 15. 20 MS. O'MEARA: Yes. 21 BY MR. McILNAY: 22 Q As to the -- your understanding of what the graph 23 was about, and you said you thought it was about 24 the amount of the various bacteria within the 25 grease or the lubricant itself, correct? 0101 1 A Yes. 2 Q Now, you need the H1 because the lubricant may 3 come in contact with the food? 4 A Yeah. It has to be H1, yes. 5 Q So in promoting food safety within the plant, 6 having a lubricant that doesn't promote the 7 growth of these bacteria means when it comes in 8 contact with the meat, it's less likely to 9 contaminate it; is that correct? 10 A Can you say that again? I'm sorry. 11 MR. McILNAY: Can you read that back? 12 (The last question was read.) 13 THE WITNESS: No. To me having a 14 product that's H1 and antimicrobial would mean 15 that anywhere that that grease is located, be it 16 on a person or on the equipment itself, and as 17 well as the meat, it shouldn't -- bacteria 18 shouldn't grow in it. 19 BY MR. McILNAY: 20 Q And you described for the Court earlier how after 21 the harvest, I think you called it? 22 A Okay. 23 Q You came in and you cleaned up the harvest room 24 with very hot water and various chemicals, 25 correct? 0102 1 A Correct. 2 Q And, if you know, 'cause I'm not sure this is 3 within your purview of your position, is it the 4 goal to get all of those chemicals clean off that 5 floor before you start production again? 6 A Yeah. I mean, they do rinse. They do a 7 pre-rinse and a final rinse. 8 Q Are those chemicals, to your knowledge, approved 9 for incidental food contact? 10 A That I know of, no. I mean, I take it under the 11 assumption that they're sold to us by Ecolab and 12 it's sold to us from their food and beverage 13 division and that they're marketing a product, 14 and going in the slaughter houses, and selling 15 this service and product, that it should be safe 16 for use in a food plant, a federally inspected 17 food plant. 18 Q That sanitation process takes place while there's 19 no food product in there, correct? 20 A Correct. It takes place after the -- after 21 they're done killing or harvesting the cattle. 22 There may be, you know, pieces I guess, of -- 23 Q Pieces and parts that aren't going to be used? 24 A That is correct, yes. So I mean -- 25 Q That's part of what you're cleaning up, I would 0103 1 assume? 2 A Yes. 3 Q Other than the lubricant, they're in that 4 processing harvesting room during the operation, 5 correct? 6 A Yes. 7 Q And you described, among other things, how there 8 was one of the lubricants. Is this a Behnke 9 lubricant that is sprayed on the conveyor chain 10 that the carcasses are on? 11 A Yes, the JAX Magna-Plate 78. 12 Q And is it foreseeable that some of that lubricant 13 will drip down on the carcasses? 14 A Yes. 15 Q In fact, that's why it has to be H1, right? 16 A Yeah, it is. 17 Q Has American Foods done any testing to determine 18 whether or not the claims of antimicrobial 19 property of the JAX lubricants are true? 20 A That I know of personally, no. 21 Q Have you been approached by any other lubricant 22 manufacturers with claims of antimicrobial 23 properties? 24 A No. 25 Q Ever been approached by Petrol Canada? 0104 1 A No. 2 Q Paragraph 17 of Exhibit 16 that's a statement 3 that you made and signed, correct? 4 A Uhm-hum. 5 Q Is that a yes? 6 A I'm sorry, yes. 7 Q What is the Hazard Analysis and Critical Control 8 Points (HACCP) food safety standards? 9 A I'm not involved directly with that, so I guess I 10 can't give you -- I've heard of the name. I know 11 it has to do with some of our quality assurance 12 procedures, but I can't tell you exactly what it 13 is in our case. 14 Q But you state here that it's something that 15 applies to your facility at American Foods? 16 A It applies -- HACCP -- HACCP is a program that 17 applies to, from my understanding, all beef 18 facilities that are federally inspected. 19 Q And that would include American Foods -- 20 A Correct. 21 Q -- Acme facility? 22 A Yes. 23 Q Paragraph 19, you stated after conferring with 24 Dr. Mohseni we both agreed that American Foods 25 should start using the Behnke Lubricants products 0105 1 such as JAX HALO-Guard FG-2, JAX Magna-Plate 74 2 and JAX Magna-Plate 78 because based on the 3 claims made by Behnke, these lubricants can 4 reduce colony counts of bacteria and, therefore, 5 increase food safety at the Acme facility and 6 help manage any cross-contamination at the 7 facility; do you see that? 8 A Yes. 9 Q And you signed that as a true and correct 10 statement? 11 A Yup. 12 Q Was it -- Was there anyone other than you and 13 Dr. Mohseni involved in that decision? 14 A In terms of, you know, should we buy the product 15 or not? 16 Q Correct. 17 A No. 18 Q What did you mean by cross-contamination? 19 A I guess if -- cross-contamination could mean a 20 number of things. Could mean like if you were to 21 come into the plant and touch either some 22 equipment or the meat itself and, say, you had 23 some bacteria on yourself that wasn't desirable, 24 you could -- that could be considered 25 cross-contamination. Or someone could come from 0106 1 the harvest side of the plant, the kill side, 2 into the cold side of the plant, which is what we 3 would call the fabrication, or the boning room, 4 and they could transfer that bacteria with them. 5 And it could come from someone touching a machine 6 that had bacteria on it. It could come from 7 anywhere. 8 MR. McILNAY: I don't know. Perhaps 9 counsel can help. Did we stipulate to Exhibit 10 16? 11 MS. O'MEARA: We did as both authentic 12 and relevant. 13 MR. CHA: And admissible. 14 MS. O'MEARA: And admissible, thank you. 15 MR. McILNAY: I beg your indulgence a 16 moment. I messed up here. 17 Q Could you turn in your book to Exhibit 8A and 18 specifically if you turn back to -- and I 19 apologize. In putting this together, you 20 probably aren't aware of this, we put numbers on 21 each page. This one happens to be EPA199 -- 22 0199; do you see that stamp? 23 A Right here, yup. 24 Q And that says Lube Guard Program Preliminary Plan 25 Lubrication Survey for Green Bay, Wisconsin 0107 1 June 20th, 2003. Looks like it was prepared by a 2 Mr. Mike Keller. Does that refresh your 3 recollection as to when you spoke with Mr. Keller 4 about the Micronox? 5 A Quite honestly, I can't say. 6 Q I'm not trying to pin you down to June 30th. 7 A No. 8 Q But could it have been as early as 2003? 9 A I think -- I mean, it could have, but I don't -- 10 Q You just don't remember? 11 A I don't recall, no. 12 Q If you would turn to the next page, there's their 13 lubricant listing, correct? 14 A Yes. 15 Q HALO-Guard FG-2 H1, that would be the food grade, 16 correct? 17 A Yes. 18 Q That product, the brief product description, 19 there's no mention of Micronox, is there? 20 A On this page, no. 21 Q And all of the H1 -- Well, let me take you down 22 to Magna-Plate 74. That's one you guys buy, 23 isn't it? 24 A Yeah, I do purchase this one. 25 Q Would you read the description for that product? 0108 1 A Sure. It says it's a food-grade air line 2 lubricant for areas of possible incidental food 3 contact also used for aid in cleaning of 4 Magna-Plate 44 food-grade grease on seamers. 5 Contains Micronox antimicrobial. 6 Q Let me just use that one for an example. 7 First of all, it states before it 8 mentions Micronox for areas of possible 9 incidental food contact, correct? 10 A Yes. 11 Q First and foremost, these products have to do 12 their lubricating function to be eligible to be 13 purchased in the plant, would that be a true 14 statement? 15 A Oh, correct, yes. 16 Q You didn't buy this solely because it's an 17 antimicrobial? 18 A It was a big influence on our decision because 19 the products we were using before really 20 didn't -- 21 Q In comparing lubricants? 22 A Right. 23 Q One lubricant to another? 24 A Right. The lubricants were fine, yeah. The ones 25 we were using at the time worked for us and we 0109 1 didn't feel any need to change with anyone else 2 until we were shown Micronox. 3 Q I understand. My question is you didn't buy it 4 for a non-lubricating cleanup or sanitizing 5 purpose? 6 A No. 7 Q On page EPA0208 of that same exhibit, could you 8 read into the record the very first paragraph on 9 that page? 10 A Sure. It says Magna-Plate 78 fluids are USP 11 white mineral oil-based lubricants utilizing a 12 proprietary additive system and synthetic polymer 13 technology to provide exceptional wear and 14 corrosion protection in USDA/NSF H1 incidental 15 contact food and beverage industry machinery 16 applications. 17 Q That was the first paragraph, correct. 18 A Yes. 19 Q The following page, let me get the number for you 20 here. EPA210. To speed things up a little bit 21 maybe I'll just read this and you follow along. 22 JAX Magna-Plate 74 food-grade air line oil 23 compounded to provide the best air line 24 lubrication performance in all areas where a food 25 contact USDA/NSF H1 authorized oil must be used. 0110 1 It contains a high percentage of emulsifiers and 2 rust inhibitors to provide trouble-free operation 3 of all operated -- air-operated equipment. The 4 emulsifier additives pick up moisture in the 5 system and exhaust it while the food-grade rust 6 inhibitors and antiwear additives protect the 7 internal parts and air motors of the lubricated 8 equipment. Those are features that are desirable 9 in your lubricants, correct? 10 A Yeah. Any -- yeah. 11 Q Would you turn to EPA page 230? 12 MS. O'MEARA: I'm sorry what page? 13 MR. McILNAY: EPA0230. 14 THE WITNESS: I show a blank page. 15 BY MR. McILNAY: 16 Q What's the next page? 17 A 231. 18 Q And what's on that page? 19 A Some letter from the United States Department of 20 Agriculture Food Safety and Inspection Service. 21 Q And do you know, this was included in the 22 materials that Mr. Keller left with you? 23 A Yeah. 24 Q Do you know why? 25 A Basically it's a letter that states this product 0111 1 is acceptable as a lubricant with incidental food 2 contact for use in official establishments 3 operating under Federal meat and poultry products 4 inspections program. 5 Q I'm sorry, it's EPA0229, I believe. 6 A It's the NSF letter stating that HALO-Guard FG-2 7 is -- that it -- these letters are for products 8 that we can use within a beef plant. 9 Q Within the -- Because of the incidental food 10 contact issue, correct? 11 A Because of the H1 rating. 12 Q Let me ask you now to turn to Exhibit 8B. Or I'm 13 sorry, 8A. These are additional materials that 14 you sent to Mr. Bonace that you found in the file 15 cabinet? 16 A I'm sorry, which tab? 17 Q 8B. 18 A Yes. 19 Q And these are additional materials that you 20 identified as having received from Mr. Keller? 21 A Yes. 22 Q And, in fact, if you look at, I don't know how 23 your book is set up here, but my version of the 24 documents looks like pages 14 and 15 of the 25 pamphlet are side by side on a page. 0112 1 A Right here? 2 Q Yeah. 3 A Okay. 4 Q Page 15, would you agree with me is what was 5 blown up here? 6 A Yes. 7 MS. O'MEARA: Your Honor, have you been 8 able to find it? 9 JUDGE GUNNING: Yes. 10 BY MR. McILNAY: 11 Q The facing page? 12 A This one here. 13 Q That faces page 15? 14 A Fourteen? 15 Q Page 14? 16 A Okay. 17 Q There's a photocopy of a letter up there. Is 18 that right? 19 A Yes. 20 Q Is that, likewise, a letter indicating that this 21 is a food-grade product? 22 A It tells me that Magna-Plate number 8 is a food 23 product. 24 Q Is it your understanding the graph refers to 25 properties of Magna-Plate eight? 0113 1 A To me it says JAX Micronox technology on the top 2 and that's what I think it applies to, the 3 technology itself. 4 Q Did you personally request any laboratory reports 5 or any independent studies beyond what Mr. Keller 6 gave you to verify the antimicrobial properties? 7 A Myself, no. 8 Q Do you know if anyone else within your company 9 did? 10 A No. Not that I know of. 11 Q They may have, you just don't know? 12 A Yeah. It could have -- We don't normally ask for 13 that if we're presented with this sort of 14 information. 15 Q You have no reason to believe, I take it, that 16 anything that Mr. Keller told you about the 17 antimicrobial properties is untrue? 18 A Do I think he would lie to me? 19 Q Well, do you have any basis to believe they're 20 untrue? 21 A No, I personally don't. No. 22 Q Indeed, you still buy the product, correct? 23 A Yes. 24 Q One more document, Mr. Rybicki. 8C we haven't 25 discussed as yet. If you turn to EPA0255, you 0114 1 see a description of JAX products, Behnke 2 Lubricants overall, correct? 3 A Yes. It says this is about JAX. 4 Q And it states, JAX's initial foray into the food 5 processing industry came around 1960 at the 6 inception of the food-grade lubrication and the 7 beginning of the USDA authorization program. I 8 take it you weren't buying lubricants in 1960? 9 A No, I was not. 10 Q Would you turn to EPA0256? This appears to be a 11 letter To Whom It May Concern from a Troy 12 Paquette; do you see that? 13 A Uhm-hum. 14 Q This was included in the materials you received 15 from Mr. Keller concerning the JAX products? 16 A Yes, it was. 17 Q That you then forwarded to Mr. Bonace, correct? 18 A Yes. 19 Q In the first full paragraph Mr. Paquette refers 20 to something he calls generally recognized as 21 safe, in parenthesis, gras, G-R-A-S. Do you know 22 what -- Do you have some understanding as to what 23 that means? 24 A That -- Yeah. That it's -- there's been no proof 25 that it's harmful, but they don't know. I mean, 0115 1 they, meaning whoever uses it, I'm guessing. 2 Q I'm sorry? 3 A By meaning they, whoever is selling the product 4 or making the product. 5 Q If you go down to the next paragraph, the first 6 sentence, All of the antimicrobial agents 7 utilized in our food-grade products are 8 authorized by the FDA and are used at FDA 9 allowable levels, do you see that? 10 A Yes. 11 Q Did you review this document before deciding to 12 purchase the JAX products? 13 A Yeah. I sat down and we looked at all of the 14 stuff and read through it, and I'm sure that 15 Dr. Mohseni reviewed most of this, too. 16 Q EPA0263. That was among the materials that 17 Mr. Keller left with you when he made his pitch? 18 A Yes. 19 Q And that is another letter from NSF indicating 20 that the product in question there is H1 21 approved; is that right? 22 A It says that the JAX POLY-Guard FG-2 is, yeah, 23 H1. 24 Q What do you know about NSF? 25 MS. O'MEARA: Objection, Your Honor, 0116 1 that's beyond the scope. 2 MR. McILNAY: If he knows nothing -- 3 JUDGE GUNNING: Well, inasmuch as the 4 entire document has come into the record, I'll 5 allow the question. 6 THE WITNESS: All I know is that the 7 government used to regulate what was H1 and I was 8 told that they stopped doing that and NSF took 9 over. 10 BY MR. McILNAY: 11 Q I want to turn back to Exhibit 16 just 12 momentarily. I understand, Mr. Rybicki, and I 13 don't intend to suggest you did anything wrong, 14 you reviewed Exhibit 16 and you signed it to 15 indicate that the statements in there are true 16 and correct to the best of your knowledge; is 17 that right? 18 A Yes, to the best of my knowledge. 19 Q Did you actually come up with the language of 20 Exhibit 16 or did you have help with that? 21 A I typed up, you know, basically my account of the 22 situation and forwarded this on to our legal 23 counsel, and he took care of putting it into a 24 declaration and then had me review it and sign 25 it. 0117 1 Q Very good. And your legal counsel is whom? 2 A Dominic Driano. 3 Q Where is he headquartered? 4 A His office is in Alexandria, Minnesota, but he 5 visits all the plants. 6 Q Do you know who employs him? 7 A I assume that Rosen Diversified employs him. 8 Q That's the entity that you recently merged with? 9 A Correct. 10 MR. McILNAY: No further questions. 11 MS. O'MEARA: Redirect, if I may? 12 JUDGE GUNNING: Please. 13 MS. O'MEARA: Thank you. 14 REDIRECT EXAMINATION 15 BY MS. O'MEARA: 16 Q Mr. Rybicki, you were asked if you still buy the 17 products today. Can you tell us why you still 18 buy the products today? 19 A We buy the products today, two reasons really. 20 The first, as a lubricant, they work. For what 21 we need them to do, they work fine. And also the 22 other one would be if we were to switch, that we 23 would need to find one that we could use in 24 conjunction with this product because from 25 various experiences before when changing oils, 0118 1 you need to make sure that they mix together and 2 that they work and that one is not going to 3 cancel the other one out or, you know, damage the 4 equipment. So we don't -- We don't -- It's 5 really hard to just change. I mean, you have to, 6 you know -- to change this over into a different 7 product. So as a lubricant it works fine and 8 that's what we need to do first and foremost. 9 Q But your previous lubricants worked as well; is 10 that correct? 11 A Just as well. 12 Q Now, you were asked some questions about the 13 sanitizers during the cleanup portion? 14 A Yes. 15 Q And you were asked if -- Well, is it possible 16 that this -- these sanitizers -- First of all, 17 are the sanitizers used on the counters where the 18 food is handled? 19 A Like where the food is -- 20 Q Placed. 21 A Yeah. It's used on every surface in the fab room 22 and in the boning room that comes in contact with 23 the meat that's cleanable. 24 Q Okay. And you were asked some questions about 25 the lubricant in or around food. I'm going to 0119 1 ask you a couple questions about that. Can you 2 tell us what Acme's protocol is if any lubricant 3 gets on the meat that is being handled? 4 A The meat is retained, shown to a USDA inspector. 5 Then they will cut out, like, the area or part 6 that the oil is on, and then they will inspect it 7 again. And then the USDA will either say yes or 8 no if we can put it back into production or if we 9 have to condemn the carcass or piece of meat. 10 Q Okay. Has Behnke ever told you to list the -- 11 Has Behnke ever told Acme to list the lubricant 12 as an ingredient in their food products? 13 A I was never told to. 14 Q Would that have been a problem if Behnke told you 15 that? 16 A Yes. I would -- Yeah. Yeah. 17 Q Now, there was some questions about whether any 18 lab results or the underlying data of those lab 19 results were given to Acme. Were they given to 20 Acme? 21 A Who gave what -- I'm sorry. 22 Q With respect to this independent lab result, was 23 anything given to Acme relating to the 24 information that came up with these results? 25 A Just -- I had just gotten that and a few of the 0120 1 other pieces of paper. I wasn't given anything 2 from a lab specifically, just that stuff from 3 JAX. 4 JUDGE GUNNING: Okay. Let the record 5 reflect you were referring to Exhibit, the blowup 6 of Exhibit -- 7 MS. O'MEARA: 8B, EPA number 0249. I 8 apologize. 9 JUDGE GUNNING: Thank you. 10 BY MS. O'MEARA: 11 Q When you -- You provided some information to 12 Mr. Bonace, correct? 13 A Yes. 14 Q And you went into your file cabinets to get that 15 information? 16 A Not actively. I just -- I came across it when I 17 was looking through my filing cabinets for 18 something pertaining to, I'm assuming, some other 19 company I was buying stuff from. 20 Q And this is all that you found, you gave to him 21 relating to -- 22 A The three envelopes that were outlined here, 23 yeah. 24 Q Now, these results, did you and Dr. Mohseni rely 25 on these results as being true? 0121 1 A That's what we took them as, yeah. 2 Q Can you tell us why again you switched from the 3 old lubricants to the Behnke lubricants with the 4 Micronox antimicrobial technology in it? 5 A Because of the added benefit that the Micronox 6 was going to give us in terms of food safety. We 7 have to do anything and everything we can to 8 insure that the people that buy our product are 9 safe. We don't want to hurt anyone, and it seems 10 like -- it seemed like a product that would work 11 for us that would help us out in that goal. 12 Q Okay, thank you. 13 Mr. Rybicki, can you please turn to, I 14 believe it's Complainant's Exhibit 8A EPA 15 number 202 at the bottom. 16 A Okay. 17 Q Okay. And you were asked to read the first 18 paragraph. I would ask you now if you could 19 please read out loud -- Give me one second. The 20 third paragraph on the right-hand column, the 21 last sentence, please in that third paragraph. 22 A It says JAX HALO-Guard FG provides Micronox 23 microbial knockdown performance. 24 Q I'm going to direct your attention to EPA 25 Exhibit 208, please. If you could turn to 208. 0122 1 I happen to have a blown-up version of 208, and 2 I'll put it up for you so we can all see it. 3 That is still Complainant's Exhibit 8A, EPA208. 4 Can you read, please, the last two paragraphs 5 under antimicrobial performance? 6 A It says both products incorporate JAX new, 7 propriety antimicrobial additive technology 8 Micronox for enhanced product protection against 9 a wide variety of microbial agents including 10 yeasts, molds, gram-positive and gram-negative 11 bacteria. A first in food-grade lubricants, JAX 12 Micronox provides significant knockdown 13 performance and has proven especially effective 14 against Listeria, Listeria monocytogenes -- I 15 can't pronounce that one -- E. coli and 16 Salmonella on contact and over extended 17 lubrication intervals. 18 MS. O'MEARA: Your Honor, if I could ask 19 if the witness could approach the exhibit because 20 the yellow part is a little bit harder to read on 21 the copy and he might be able to see it better on 22 the actual exhibit. 23 JUDGE GUNNING: If you want to try, he 24 may be able to read it. 25 BY MS. O'MEARA: 0123 1 Q If you could see if you can read the third bullet 2 point on the left-hand side? 3 A I can't on the copy here. 4 MS. O'MEARA: May he approach? 5 JUDGE GUNNING: Yes. 6 MS. O'MEARA: Thank you. 7 BY MS. O'MEARA: 8 Q The third bullet point if you could read it, 9 please? 10 A It says, Excellent -- 11 Q I'm sorry, fourth bullet point. 12 A Powerful Antimicrobial Performance. 13 Q Okay. And can you read the last bullet point on 14 the right-hand column? 15 A Added insurance for antimicrobial protection. 16 Q Could you take your seat? Thank you. I 17 appreciate it. 18 I'd ask you to turn, please, to EPA 19 number 210. And you were asked to read that 20 first paragraph or perhaps it was read into the 21 record. I would ask you, please, to read the 22 second paragraph. 23 A JAX Magna-Plate 74 incorporates JAX new, 24 proprietary, antimicrobial additive technology 25 Micronox, for enhanced antimicrobial protection 0124 1 against a wide variety of microbial agents 2 including yeasts, molds, gram-positive and 3 gram-negative bacteria. A first in food-grade 4 lubricants, JAX Micronox provides significant 5 knockdown performance and has proven especially 6 effective against Listeria, E. coli and 7 Salmonella on contact and over extended 8 lubrication intervals. 9 Q Thank you. If you could please read in the 10 right-hand column the middle paragraph item 11 number 2? 12 A Micronox antimicrobial technology to knockdown 13 and prevent microbe growth in the air system 14 making it an active participant in any food or 15 beverage plants' programs for enhanced microbial 16 protection. 17 Q Did statements like these, these claims, impact 18 you when you purchased the product? 19 A Yeah. 20 Q Mr. Rybicki, if you can answer this, can you tell 21 us after the lubricant is applied onto the 22 equipment, how much of it is expected to stay on 23 the equipment and function as a lubricant? 24 A In most cases when the maintenance crew puts it 25 on, they apply it and any excess they wipe off. 0125 1 Q And so how much of it is expected to drip into 2 the production area in comparison? 3 A I mean, we really don't expect it to, but it 4 always is a possibility. 5 Q I'm going to ask you if you could please to turn 6 to EPA number 229 and that is still in 7 Complainant's Exhibit 8A. And what is this? 8 A This is a NSF letter for the JAX HALO-Guard FG-2. 9 Q Can you read that first sentence, please? 10 A NSF has processed the application for 11 registration of JAX HALO-Guard FG-2 to the NSF 12 registration guidelines for proprietary substance 13 in non-food compounds which are available at 14 NSF.org/USDA. 15 Q Can you also read the second paragraph, last 16 sentence, please? 17 A If used as an antirust film, the compound must be 18 removed from the equipment surface by washing or 19 wiping as required to leave the surface 20 effectively free of any substance which could be 21 transferred to food being processed. 22 Q Is this being used as an antirust film in your 23 facility? 24 A It's used as a food-grade grease. I don't know 25 if it's being used as an antirust film. 0126 1 Q And if you could please turn to EPA249, which 2 is -- I will put this back up. Actually, it's 3 Complainant's Exhibit 8B, EPA249. We'll actually 4 talk about the other side of this for a moment of 5 this letter that Mr. McIlnay asked you about. 6 Could you tell everybody what the date of that 7 letter is? 8 A July 4th, 1962. 9 Q And on the side that has this portion of the 10 exhibit, the blown-up exhibit, so page 15 of 11 EPA249, could you please read the two top 12 paragraphs? You can do it off the exhibit if 13 it's easier. 14 A In the first paragraph here it says, 15 Independently engineered and field tested by JAX, 16 the Micronox additive system is a groundbreaking 17 advance that promises to enhance antibacterial 18 capabilities in food and beverage plants 19 nationwide. Micronox will supply immediate and 20 significant knockdown capabilities and will be an 21 active participant in any food or beverage plant 22 program designed for enhanced antimicrobial 23 protection. 24 Q And the next paragraph, please? 25 A Through laboratory testing of competitive 0127 1 food-grade lubricants, no other lubricant in the 2 industry has demonstrated comparable knockdown 3 performance. This distinction is important. If 4 a bacteria, yeast or mold colony is already 5 established, FDA/USDA/NSF-approved competitor 6 lubricants will not inhibit the growth of the 7 colony but to actually kill the colony will 8 require a sanitation process, or the use of JAX 9 food-grade lubricants which incorporate Micronox 10 technology. 11 Q Did you rely on these statements when you decided 12 to purchase the lubricants? 13 A Yeah. 14 Q I'm sorry? 15 A Yeah. 16 Q Now, can I ask you to turn to page 263 EPA263? 17 Mr. McIlnay asked you to look at this exhibit as 18 well and when he did he asked you to tell 19 everybody what NSF was. Did you say it's a 20 governmental agency? 21 A My understanding of what NSF is is all I know is 22 that the government used to regulate what was H1 23 and what wasn't and then that was passed off to 24 NSF. I don't know if NSF is a government or 25 private entity. 0128 1 Q Okay. Thank you. 2 MS. O'MEARA: One minute, Your Honor, if 3 I may. 4 Your Honor at this time I don't have any 5 further questions, but I do want to note that we 6 did agree that Complainant's Exhibit 16A was 7 admitted into the record and I'd ask that it be 8 admitted at this time. 9 JUDGE GUNNING: I didn't hear the 10 last -- 11 MS. O'MEARA: 16A, I'm sorry, Your 12 Honor. 13 JUDGE GUNNING: Sixteen and 16A? 14 MS. O'MEARA: Yes. 15 JUDGE GUNNING: Yes, pursuant to the 16 stipulations? 17 MS. O'MEARA: Yes, pursuant to the 18 stipulations. 19 Thank you very much. I have no further 20 questions at this time. 21 MR. McILNAY: Nothing further, Your 22 Honor. 23 JUDGE GUNNING: Okay. Are you going to 24 reserve this witness? 25 MS. O'MEARA: Not if there is going to 0129 1 be any further -- There's not going to be any 2 further questioning of this witness, no. Excuse 3 me a second. 4 I'd ask that he be excused at this time, 5 Your Honor. 6 JUDGE GUNNING: Okay. Sir, thank you 7 very much for your testimony today. You are now 8 excused. 9 We seem to be moving along with our 10 witnesses pretty well. The next witness that EPA 11 will be calling, how long -- I assume this is a 12 more lengthy witness? 13 MR. OLSON: Yes, Your Honor. We will 14 call Mr. Terry Bonace next and we do expect his 15 testimony to take three or four hours on Direct. 16 JUDGE GUNNING: How about if we take a 17 short break now and then we'll begin that 18 testimony? It would be terrific if we could get 19 through it today -- 20 MR. OLSON: We'll go as fast as we can. 21 JUDGE GUNNING: -- but we'll be 22 realistic. 23 MR. OLSON: Thank you. 24 (A recess was taken.) 25 JUDGE GUNNING: Would you like to call 0130 1 your next witness? 2 MS. O'MEARA: EPA calls Mr. Terry 3 Bonace. 4 ROBERT T. BONACE, called as a witness 5 herein, having been first duly sworn on oath, was 6 examined and testified as follows: 7 DIRECT EXAMINATION 8 BY MR. OLSON: 9 Q Mr. Bonace, can you please state your name and 10 spell your name for the record? 11 A Robert Terence Bonace. That's R-O-B-E-R-T, 12 T-E-R-E-N-C-E, B-O-N-A-C-E. 13 Q The proper pronunciation of your last name is? 14 A Bonace. 15 Q Are you employed, Mr. Bonace? 16 A Yes, I am. 17 Q Where do you work? 18 A I work for the United States Environmental 19 Protection Agency. 20 Q And how long have you worked for EPA? 21 A Almost 22 years. 22 Q Currently, Mr. Bonace, what is your official 23 title or position? 24 A I am a Life Scientist. 25 Q And how long have you held that position? 0131 1 A I've always been -- always had the title of a 2 Life Scientist for my whole career at EPA. 3 Q Currently as a Life Scientist what are your 4 primary duties? 5 A Currently in the Pesticides and Toxics Compliance 6 Section, my current duties are inspection, case 7 development and compliance assistance with three 8 environmental statutes, FIFRA, and in addition 9 the Toxic Substances Control Act and Section 313 10 of the Emergency Planning and Community 11 Right-to-Know Act. 12 Q And those acronyms are on the list that you have 13 as well. 14 You mentioned that you've had your 15 position for 22 years or -- excuse me, your title 16 as Life Scientist for 22 years. Have you held 17 any other positions than the one you currently 18 hold? 19 A Yes. Three different -- I guess three different 20 positions. 21 Q So your title has remained the same -- 22 A Or four, sorry. 23 Q Your title has remained the same but you've 24 changed positions? 25 A That's correct. 0132 1 Q What previous positions have you held? 2 A When I first started at EPA, I was a PCB 3 inspector, and I worked in the PCB section for 4 about four years. And then I moved into the, 5 what was called the Chemical Control Section 6 where we enforced what we call core TSCA, Toxic 7 Substances Control Act, a number of sections of 8 that statute in addition to Section 313 of 9 EPCRTKA. And then a couple years later I moved 10 into the pesticides section where we did only 11 FIFRA work. And then there was a reorganization 12 I think in 1995 where EPCRTKA, TSCA and FIFRA 13 were brought together in my current section. 14 Q I'd like to change gears a little, Mr. Bonace, 15 and talk about your educational background just 16 briefly. Do you hold any educational degrees? 17 A Yes, I do. 18 Q What degrees do you hold? 19 A I have a Bachelor's -- Bachelor of Science in 20 zoology and a Master of Arts in zoology. 21 Q And when did you receive each of these degrees, 22 Mr. Bonace? 23 A The Bachelor's I received in 1980, and the 24 Master's in 1983. 25 Q And where did you receive those degrees? 0133 1 A The Bachelor's from Ohio State University and the 2 Master's from Southern Illinois University. 3 Q I'd like to talk now with you more directly about 4 your experience specifically with FIFRA 5 enforcement. Roughly how many FIFRA enforcement 6 cases have you personally reviewed in the course 7 of your work at EPA? 8 A I've reviewed several hundred FIFRA enforcement 9 cases. 10 Q And approximately how many of these cases 11 resulted in the agency proposing a penalty? 12 A Over 100. 13 Q And you mentioned, Mr. Bonace, that you have done 14 inspections. Approximately how many FIFRA 15 inspections have you performed? 16 A Approximately 70. 17 Q I'd like to talk with you now even more 18 specifically about your involvement with this 19 case, Mr. Bonace. How did you first become 20 involved in the case against Behnke Lubricants? 21 A In May of 2005 my office or I personally received 22 a tip complaint concerning Behnke Lubricants. 23 Q And what was the nature of that complaint? 24 A That Behnke Lubricants was selling lubricant 25 products with antimicrobial and, therefore, 0134 1 pesticidal claims associated with them. 2 Q And did you do anything to investigate that tip 3 complaint at the time? 4 A I did. 5 Q What did you do? 6 A I looked at their web site, one of the first 7 things I did, to confirm that those claims could 8 be found on their web site. 9 Q And did you confirm that, Mr. Bonace? 10 A Yes, I did. 11 Q And after you took a peek at their web site, what 12 did you do in response to the complaint and in 13 response to your initial Internet investigation? 14 A I prepared what's called an Enforcement Case 15 Review. 16 Q What is an Enforcement Case Review? 17 A That's a mechanism we have to get an official 18 opinion from EPA headquarters or the Office of 19 Pesticide Programs. 20 Q What did you do with that Enforcement Case 21 Review? 22 A I prepared it and submitted it to the appropriate 23 offices. 24 MR. McILNAY: Your Honor, I'm having a 25 difficult time hearing. 0135 1 THE WITNESS: Are you? Let me -- 2 BY MR. OLSON: 3 Q And did EPA headquarters reply to your request? 4 A They did. 5 Q And what did they reply? 6 A That the claims that Behnke Lubricants was 7 making -- or the claims -- was making were 8 pesticidal claims. 9 Q Mr. Bonace, after you received word back from 10 headquarters that they concurred, what did you do 11 next? 12 A I prepared an investigation request for the 13 Wisconsin Department of Agriculture, Trade and 14 Consumer Protection. 15 Q Prior to preparing that, did you perform any 16 additional investigation? 17 A Right. At the same time that I got that 18 response, I did again look at Behnke Lubricants' 19 web site to see if the claims were continued to 20 be made, and they were. 21 Q How did you find Behnke Lubricants' web site? 22 A I either recalled a very simple URL for that web 23 site, JAX.com, or I looked up Behnke Lubricants 24 on a search engine like Google. 25 Q And did you find Behnke Lubricants' web site? 0136 1 A Yes, I did. 2 Q And generally what information did you find on 3 the web site? 4 A I saw that antimicrobial and pesticidal claims 5 were still being made on their web site. 6 Q Did you retrieve any of this information? 7 A Yes, I did. 8 Q And this may be a simplistic question as well, 9 but how did you retrieve this information? 10 A I would print the pages as I came upon them from 11 the web site. 12 Q Mr. Bonace, I'd like to direct your attention to 13 what's been marked as Complainant's Exhibit 3. 14 It's in Volume I. I'll give you a moment to look 15 that over. 16 A Okay. 17 Q Do you recognize Complainant's Exhibit 3? 18 A Yes. These would be pages from Behnke 19 Lubricants' web site that I printed in June of 20 2006. 21 Q Mr. Bonace, I'd like to direct your attention 22 specifically to Bates page 61, which is the first 23 page of Complainant's Exhibit 3. Specifically 24 regarding this page, what is this page? 25 A Well, this is a page from within Behnke 0137 1 Lubricants' web site that focuses on lubrication 2 for meat, poultry and seafood processing. 3 Q In your enforcement work, is there any 4 information on this page that is of concern to 5 you? 6 A Yes. 7 Q And what is that language? 8 A Well, there are several locations. The first one 9 I see is in the top paragraph. 10 Q Can you read that, please? 11 A Sure. The second sentence the introduction of 12 JAX exclusive Micronox antimicrobial technology 13 gives plants in search of tools for added 14 microorganism control a powerful extra weapon in 15 their arsenal of protection. 16 Q Are there any other claims on this page that are 17 of interest to you? 18 A I notice in the bulleted item on the lower half 19 of the page, the second bulleted item says JAX 20 POLY-Guard FG and HALO-Guard FG greases contain 21 Micronox, the only truly effective active 22 microbial control agent in the food-grade 23 lubricant industry. 24 And then there's one more at the bottom. 25 And that says as of May 1st, 2002, every 0138 1 food-grade lubricant in the JAX line incorporates 2 our exclusive Micronox antimicrobial technology 3 providing true knockdown performance against a 4 wide range of bacteria and other microorganisms. 5 Q Mr. Bonace, I'd like to direct your attention to 6 the next page, page 62 of Complainant's 7 Exhibit 3. What is this page? 8 A This is another page that I printed in June of 9 2006 from Behnke Lubricants' web site. 10 Q And is there any language on this page that is of 11 concern to you in your enforcement work? 12 A Yes. 13 Q And what is that language? 14 A The first one I note is in the second paragraph, 15 the last sentence. With the added benefit of 16 Micronox, JAX exclusive antimicrobial chemistry 17 which independent testing has proven to be the 18 most effective in the industry, plants can 19 achieve an extra measure of sanitation 20 protection. 21 And then the second bulleted item, JAX 22 POLY-Guard FG grease contains Micronox, the only 23 truly effective, active bacteria control agent in 24 the food-grade lubricant industry. 25 Q Mr. Bonace, please turn to Bates page 65 within 0139 1 Complainant's Exhibit 3. What is this page? 2 A This is another page from Behnke Lubricants' web 3 site that I printed out in June of 2006. 4 Q And is there any information on this page that is 5 of concern to you in your enforcement work? 6 A Yes. In the middle of the page under POLY-Guard 7 FG-2, FG-LT, the last sentence says, Now contains 8 Micronox antimicrobial for true knockdown 9 performance against a broad spectrum of microbial 10 contaminants. 11 Q Similarly, Mr. Bonace, please turn to page 66. 12 What is this page? 13 A Another page that I printed from Behnke 14 Lubricants' web site in June of 2006. 15 Q And is there any information on this page that is 16 of concern to you in your enforcement work? 17 A Yes. 18 Q And what information is that? 19 A The first I see is in the second paragraph, the 20 second sentence, They are formulated to handle 21 both the extreme high temp machinery conditions 22 with the added benefit of Micronox, JAX exclusive 23 antimicrobial chemistry which independent testing 24 has proven to be the most effective in the 25 industry. 0140 1 And then the second bulleted item, JAX 2 POLY-Guard FG grease contains Micronox, the only 3 truly effective, active bacteria control agent in 4 the food-grade lubricant industry. 5 Q Directing your attention now, Mr. Bonace, to the 6 bottom of page EPA69 carrying over to the top of 7 page 70, is there language here that is of 8 concern to you in your enforcement work? 9 A Yes. Under the heading of POLY-Guard FG-2, 10 FG-LT, and the sentence that would concern me 11 most under that heading starts on page 70 where 12 it says, Other features include excellent 13 pumpability, separation control and easier 14 cleanup for sanitation. Now contains Micronox 15 antimicrobial for true knockdown performance 16 against a broad spectrum of microbial 17 contaminants. 18 MS. O'MEARA: Your Honor, Complainant 19 moves to admit Complainant's Exhibit 3 into the 20 record. 21 MR. McILNAY: I'd like to reserve my 22 objection till I've had a chance to cross-examine 23 the witness. 24 BY MR. OLSON: 25 Q Mr. Bonace, before I interrupted you, previously 0141 1 you mentioned that you prepared a referral to an 2 agency with the State of Wisconsin. 3 A Yes. To the Wisconsin Department of Agriculture, 4 Trade and Consumer Protection. 5 Q And why did you do that, Mr. Bonace? 6 A So that they could perform an inspection at 7 Behnke Lubricants' facility. 8 JUDGE GUNNING: If you could, just move 9 the microphone -- 10 THE WITNESS: Closer to me? 11 JUDGE GUNNING: Yes, please. Thank you. 12 BY MR. OLSON: 13 Q Mr. Bonace, I'd like to direct your attention to 14 Complainant's Exhibit 1 in Volume I. Do you 15 recognize Complainant's Exhibit 1? 16 A Yes. This is the report of the Wisconsin 17 Department of Agriculture's inspection at Behnke 18 Lubricants in August of 2006. 19 Q And, Mr. Bonace, you were in the courtroom this 20 morning when Mr. Saatkamp testified that this was 21 his report? 22 A Yes. 23 Q I'd like to direct your attention to a few pages 24 in Mr. Saatkamp's report. First to Bates page 25 21. What is this page? 0142 1 A This is a technical information sheet, you might 2 call it, that Mr. Saatkamp collected during his 3 inspection at Behnke Lubricants in August of 4 2006. 5 Q And having received this document from 6 Mr. Saatkamp, when you looked at it, was there 7 any language on this page that was of concern to 8 you in your enforcement work? 9 A Yes. 10 Q What language is that? 11 A There are -- Well, there's more than one area. 12 On the right-hand side of the page the top 13 paragraph where it says, Since June 1st, 2001 JAX 14 POLY-Guard FG contains Micronox providing 15 antimicrobial protection for the product. JAX 16 Micronox has proven especially effective in 17 protecting JAX POLY-Guard greases against 18 Listeria, E. coli and Salmonella at overextended 19 lubrication intervals. 20 Q Mr. Bonace, I'd like to also direct your 21 attention to Bates page 25 within the attachments 22 to Mr. Saatkamp's report. Having received this 23 as part of Mr. Saatkamp's report, was there any 24 information on this page that was of concern to 25 you in your enforcement work? 0143 1 A Yes, there was. 2 Q And what information was that? 3 A Well, on the left-hand column the middle 4 paragraph where it says JAX Magna-Plate 74 5 incorporates JAX new proprietary antimicrobial 6 additive technology Micronox for an 7 antimicrobial protection for the product against 8 a wide variety of microbial agents including 9 yeast, molds and gram-positive and gram-negative 10 bacteria. A first in food-grade lubricants JAX 11 Micronox has proven especially effective 12 protecting the product against Listeria, E. coli 13 and Salmonella. 14 There are a couple bulleted items on the 15 bottom of the page, too. 16 Q Go ahead, please. 17 A On the left-hand side it says, powerful 18 antimicrobial performance, and on the bottom the 19 bulleted item is added step in microbial 20 protection programs. 21 Q Mr. Bonace, to your knowledge did the Wisconsin 22 inspector collect any physical sample during his 23 inspection? 24 A Yes, he did. 25 Q And did he forward them to you? 0144 1 A He did. 2 MR. OLSON: Your Honor, request 3 permission to approach the witness? 4 JUDGE GUNNING: Yes. 5 BY MR. OLSON: 6 Q Mr. Bonace, I'm going to hand you what's been 7 marked as Plaintiff's Exhibit 38. Is 8 Complainant's Exhibit 38. Is Complainant's 9 Exhibit 38 a product that Mr. Saatkamp forwarded 10 on to you after his inspection? 11 A Yes. 12 Q What is the name of the product? 13 A POLY-Guard FG-2. 14 Q And if you can see well enough through the 15 bagging, is there any language that's 16 specifically on that labeling that is of concern 17 to you in your enforcement work? 18 A There is. There's a couple different things I 19 can see. On the -- There's a first large 20 paragraph that says the bonus is an H1 21 lubricating grease with Micronox, JAX exclusive 22 antimicrobial chemistry producing true knockdown 23 capabilities. 24 And then in addition there are some 25 bulleted items lower on this label. One says 0145 1 powerful antimicrobial performance, and another 2 says added step in microbial protection programs. 3 Q And I hand you what's marked Complainant's 4 Exhibit 39. What's the name on that product 5 label? 6 A HALO-Guard FG-2. 7 Q And is this a product that Mr. Saatkamp delivered 8 to you after his inspection? 9 A Yes, it is. 10 Q And is there any language on the label of that 11 product that's of concern to you in your 12 enforcement work? 13 A Yes. Yes, there is. 14 Q What is that language? 15 A JAX HALO-Guard FG-2 provides Micronox microbial 16 knockdown performance. 17 Q I can take those back so you have more room for 18 your microphone. 19 A Thanks. 20 Q Now, Mr. Bonace, subsequent to doing your 21 June 2006 Internet investigation and receiving a 22 report back from the State of Wisconsin regarding 23 Mr. Saatkamp's investigation, what did you 24 conclude with regard to this matter? 25 A That Behnke Lubricants was selling another -- a 0146 1 number of lubricant products with antimicrobial 2 and pesticidal claims. 3 Q Did you conclude then that it was appropriate to 4 continue your investigation? 5 A Yes, I did. 6 Q At that point do you recall how you continued 7 your investigation? 8 A I think the next time I checked their web site 9 was in November of 2006. The inspection took 10 place in August of 2006 and I was interested to 11 see if Behnke Lubricants continued to make 12 antimicrobial claims in their web site, and they 13 did. 14 Q Mr. Bonace, I'd like to direct you now to what's 15 been marked as Complainant's Exhibit 4. Do you 16 recognize Complainant's Exhibit 4? 17 A These are pages that I printed from Behnke 18 Lubricants' web site in November of 2006. 19 Q At this time how did you find Behnke Lubricants' 20 web site? 21 A The same as the last time. I either recalled the 22 simple URL or I did a search for Behnke 23 Lubricants. 24 Q I'd like to direct your attention now 25 specifically to Bates page 72, which is the first 0147 1 page of Complainant's Exhibit 4. What is this 2 page? 3 A This is a page from Behnke Lubricants' web site 4 that I printed out November of 2006 associated 5 with meat, poultry and seafood processing. 6 Q Mr. Bonace, I'd like to take you back just a 7 little bit to see how this page compares with 8 Bates page 61, which you previously testified 9 from Complainant's Exhibit 3 was a download that 10 you did in June of 2006. How does Bates page 72 11 compare with Bates page 61? 12 A Well, the claims that I read from Bates page 61 13 are still present in November of 2006 on Bates 14 page 72. They're identical from the June 2006 15 visit to the web site and the November 2006 16 visit. 17 Q Mr. Bonace, I'd like to direct your attention now 18 to Bates page 74 of Complainant's Exhibit 4 and 19 what is this page? 20 A This is a page from Behnke Lubricants' web site 21 that I printed out in November of 2006. 22 Q And, again, I'd like to direct you back to Bates 23 page 62 in Complainant's Exhibit 3. 24 A Three. 25 Q How does 74 compare with 62? 0148 1 A The claims that I read from 62 are still in the 2 November 2006 page 74. They're identical. 3 Q I'd like to direct your attention now to 4 Complainant's Exhibit 4, Bates page 77. And I'd 5 like you again to refer this time back to Bates 6 page 65 on Complainant's Exhibit 3. 7 A And again, under POLY-Guard FG-2, FG-LT the claim 8 that I read from page 65 is again still present 9 in page 77 from November 2006. 10 Q And can you explain again why it's important that 11 the pages are still the same? 12 A Well, the company had an inspection in August of 13 2006 where they were certainly given an 14 opportunity to consider the issues that the 15 inspector brought up and to ask EPA or to make 16 appropriate changes to remove those claims and 17 that did not happen. 18 MR. OLSON: Your Honor, at this time 19 Complainant moves to admit Complainant's 20 Exhibit 4. 21 MR. McILNAY: Same response, Your Honor. 22 Reserve until I have a chance to cross-examine. 23 JUDGE GUNNING: Okay. 24 BY MR. OLSON: 25 Q So, Mr. Bonace, after your initial June 2006 0149 1 Internet investigation, the Wisconsin Department 2 of Agriculture's inspection in August of 2006 and 3 your subsequent November 2006 Internet 4 investigation, what did you conclude? 5 A That Behnke Lubricants was distributing or 6 selling unregistered pesticides. 7 Q And how did you proceed at this point, 8 Mr. Bonace? 9 A I calculated a penalty and I drafted a complaint 10 based on the evidence and the inspection report. 11 Q Did you make any attempt to contact Respondent 12 about these problems? 13 A We -- Our office sent a pre-filing notice or a 14 Notice of Intent to File a Civil Administrative 15 Action in December of 2006. 16 Q Okay. What is a Notice of Intent, Mr. Bonace? 17 A It -- It's a notification to a company that we 18 intend to file a civil administrative action. We 19 briefly describe the violations and usually say 20 what the penalty is that we plan to assess and we 21 give the company an opportunity to meet with us 22 or -- and discuss the issues. 23 Q Mr. Bonace, I'd like to direct your attention now 24 to what's been marked as Complainant's Exhibit 2. 25 Do you recognize this exhibit? 0150 1 A Yes. This is the Notice of Intent that I 2 mentioned that our office sent to Behnke 3 Lubricants in December of 2006. 4 MR. OLSON: Your Honor, Complainant's 5 Exhibit 2 has already been admitted by 6 stipulation, or the parties have stipulated that 7 it's admissible, and we discuss it here only to 8 put it in context with Mr. Bonace's 9 investigation. 10 Q Mr. Bonace, what was the result of sending this 11 pre-filing letter? 12 A I did receive a call from Mr. McIlnay in, I 13 think, late December and we had a meeting with 14 Behnke Lubricants, I think, in early February of 15 2007. 16 Q And what was the purpose of that meeting? 17 A To discuss the violations that we allege and 18 possible settlement. 19 Q And just very generally, Mr. Bonace, what was the 20 result of that meeting? 21 A It was not a successful meeting. We did not 22 arrive at any kind of settlement. 23 Q Subsequent to that meeting with Behnke 24 Lubricants, how did you then proceed with your 25 investigation? 0151 1 A I did more Internet reviews and searches. 2 Q Okay. Mr. Bonace, I'd like to direct your 3 attention to what's been marked as Complainant's 4 Exhibit 5. And forgive the repetitive question. 5 This time how did you find Behnke Lubricants' web 6 site? 7 A At this point it's likely I simply put in 8 JAX.com, but I may have searched for Behnke 9 Lubricants. 10 Q Did you retrieve any information in February of 11 2007? 12 A I did. I printed out a number of pages from 13 Behnke Lubricants' web site. 14 Q Do you recognize what's been marked as 15 Complainant's Exhibit 5, Mr. Bonace? 16 A Yes. These are pages from Behnke Lubricants' web 17 site that I printed out in February of 2007. 18 Q Looking specifically at Bates page 82 of 19 Complainant's Exhibit 5, what is this page? 20 A This is a page from Behnke Lubricants' web site 21 that is directed towards the fruit and vegetable 22 processing business. 23 Q And is there any information on this page that is 24 of concern to you in your enforcement work? 25 A Yes. 0152 1 Q What is that information? 2 A The middle paragraph, the last sentence where it 3 says, With the added benefit of Micronox JAX 4 exclusive antimicrobial chemistry, which 5 independent testing has proven to be the most 6 effective in the industry, plants can achieve an 7 extra measure of sanitation protection. 8 And in addition in the lower half of the 9 page the second bulleted item JAX POLY-Guard FG 10 grease contains Micronox, the only truly 11 effective active bacteria control agent in the 12 food-grade lubricant industry. 13 MR. OLSON: Your Honor, expecting the 14 same response, Complainant at this point moves to 15 admit Complainant Exhibit 5. 16 MR. McILNAY: I would reserve the right 17 to cross-examine. 18 JUDGE GUNNING: Okay. 19 BY MR. OLSON: 20 Q So subsequent to your international 21 investigation, you did in February of 2007, what 22 did you conclude at this point in your 23 investigation, Mr. Bonace? 24 A That Behnke Lubricants continued to make 25 antimicrobial pesticidal claims associated with 0153 1 several of their lubricant products. 2 Q And subsequent to that conclusion, how did you 3 then proceed? 4 A Well, I did a couple of things. I did further 5 Internet searches and I did some inspections. 6 Q Let's talk about your inspections, Mr. Bonace. 7 Where did you perform inspections? 8 A At several customers of Behnke Lubricants. 9 Q And how did you determine where to perform these 10 investigations? 11 A These names and addresses were taken from 12 invoices that the Wisconsin inspector collected 13 during his inspection at Behnke Lubricants. 14 Q Do you recall the names of any of those 15 facilities at which you did these investigations? 16 A Yes, I do. 17 Q What are they? 18 A Perlick Corporation, Seneca -- I can't remember 19 the rest of the name of that, Seneca, and Sara 20 Lee, American Foods, Badger Plastics and KHS. 21 Q Let's talk first about your investigation at 22 American Foods. 23 A Okay. 24 Q Why did you perform this investigation? 25 A Because we had an invoice that the Wisconsin 0154 1 inspector collected that showed American Foods 2 was a customer of Behnke Lubricants. 3 Q And, Mr. Bonace, when you perform an 4 investigation or an inspection, do you routinely 5 write a report documenting that investigation? 6 A Yes, I do. 7 Q Did you write a report documenting this 8 investigation? 9 A Yes, I did. 10 Q Mr. Bonace, I'd like to direct your attention to 11 what's been marked as Complainant's Exhibit 8. 12 Do you recognize 8, Mr. Bonace? 13 A Yes. This is the report I wrote on my inspection 14 at American Foods on March 8, 2007. 15 Q Mr. Bonace, when did you write this report? 16 A I wrote it shortly after the inspection. 17 Q And what information did you rely upon when you 18 wrote this report? 19 A My notes and my memory. 20 Q And how well did you remember the details of the 21 investigation when you wrote your report? 22 A Very well, since I wrote it very shortly after. 23 Q And how accurately does your report summarize 24 your investigation? 25 A Very accurately. 0155 1 Q When you visited American Foods, did you have a 2 primary contact during your investigation? 3 A Yes. I would say that Josh Rybicki was my 4 primary contact. 5 Q The same Josh Rybicki that testified this 6 afternoon after lunch? 7 A Yes. 8 Q Did Mr. Rybicki provide you with any documents 9 during that investigation? 10 A During the investigation I think he gave me some 11 purchase orders. 12 Q And in your experience what purpose do purchase 13 orders serve for a company? 14 A They document the -- that an order is made to a 15 company to buy a product. 16 Q I'd like to direct your attention to 17 Complainant's Exhibit 8, Bates page 193. What is 18 page 193? 19 A This is one of the purchase orders that I 20 collected during my inspection at American Foods. 21 Q And in your enforcement work, what information is 22 of interest to you on a purchase order and on 23 this purchase order? 24 A Well, the sale or evidence of a sale or 25 distribution of a violated product is of interest 0156 1 to me in enforcement work. 2 Q Directing your attention to the next page that's 3 been marked Bates page EPA0194, what information 4 on this page is of interest to you in your 5 enforcement work? 6 A Again, this would be documentation of a sale or 7 distribution and particularly on this one it's 8 the Magna-Plate 78 and the HALO-Guard FG-2. 9 Q So on the date of your visit to American Foods, 10 did you collect any other information from the 11 facility? 12 A I think I only collected purchase orders on that 13 date. 14 Q Okay. Did you have a conversation with 15 Mr. Rybicki about sending you any further 16 information? 17 A Yes, I did. He told me at that inspection that 18 he believed he had some documents that would show 19 the type of antimicrobial claims that Behnke 20 Lubricants was making, that if he were to look 21 for them, he could find them and send them to me. 22 Q Did he find those and send you anything? 23 A He did. He sent me in three separate mailings, 24 three separate items. 25 Q I'd like to direct your attention now to 0157 1 Complainant's Exhibit 8A. What is 8A? 2 A This is the, one of the items that, a copy of one 3 of the items that Josh Rybicki sent to me after 4 my inspection. 5 Q Just briefly, Mr. Bonace, I'd like to direct you 6 to a couple of pages in 8A, specifically to Bates 7 page 208. What is this page? 8 A This is an information sheet on Magna-Plate 78. 9 Q And is there any information on this page that is 10 of concern to you in your enforcement? 11 A Yes. 12 Q What is that information? 13 A On the right-hand column the lower two 14 paragraphs, both products incorporate JAX new 15 proprietary antimicrobial additive technology 16 Micronox for enhanced product protection against 17 a wide variety of microbial agents including 18 yeast, molds, gram-positive and gram-negative 19 bacteria. 20 And the next paragraph. A first in 21 food-grade lubricants JAX Micronox provides 22 significant knockdown performance and has proven 23 especially effective against Listeria, E. coli 24 and Salmonella on contact and over extended 25 lubrication intervals. 0158 1 Q I'd like to direct your attention to the next 2 page, Mr. Bonace, Bates page 209. Is there 3 language or information on this page that is of 4 concern to you in your enforcement work? 5 A Yes. On the lower half of this page there is a 6 figure concerning antimicrobial properties of 7 Magna-Plate 78 specifically against Listeria, 8 E. coli and Salmonella. 9 Q Mr. Bonace, I'd like to direct your attention 10 next to Complainant's Exhibit 8B. And what is 11 8B? 12 A This is a second mailing that I received from 13 Josh Rybicki after my inspection at American 14 Foods. 15 Q Okay. Again, I'd just like to direct you briefly 16 within this package you received to Bates 17 page 249. And specifically with this page 15 we 18 have we saw in Mr. Rybicki's testimony; what is 19 this page? 20 A This is a page from an item that Josh Rybicki 21 mailed to me after my inspection and the -- 22 page 15 on the right is of particular interest to 23 me. 24 Q Is there language then within that page that's of 25 concern to you? 0159 1 A I think just about everything on that page would 2 be of concern to me. 3 Q Can you explain that, Mr. Bonace? 4 A It all deals with antimicrobial properties of 5 this JAX Micronox technology and gets very 6 specific with a number of disease-causing 7 organisms on the bottom of the page, Listeria, 8 E. coli and Salmonella. 9 Q Mr. Bonace, I'd like to direct your attention 10 next to Exhibit 8C. Do you recognize 8C? 11 A This is the third mailing that I received from 12 Josh Rybicki after my inspection at American 13 Foods. 14 Q Again, directing your attention within 8C to 15 Bates page 253, what is this page? 16 A This is the cover page of a booklet that Josh 17 Rybicki sent to me after my inspection. 18 Q And is there language on this cover page that is 19 of concern to you in your enforcement work? 20 A Yes. The title of the document, JAX Micronox 21 technology introducing Micronox technology in 22 food-grade lubricants for microbial knockdown 23 performance against Listeria, E. coli, Salmonella 24 and other microorganisms. 25 Q I'd like to direct your attention to Bates 0160 1 page 256. What is 8C? I'm sorry, what is 2 page 256? 3 A 256 is part of that booklet that Josh Rybicki 4 sent to me. And it talks all about the 5 antimicrobial properties of some of Behnke's 6 lubricants. 7 Q Is there any language on this page that is of 8 particular concern to you in your enforcement 9 work? 10 A It's hard to narrow down, but the first paragraph 11 is a good place to start. 12 Q Go ahead, please. 13 A Behnke Lubricants, USDA/NSF authorized H1 14 lubricants incorporate a propriety mix of 15 antimicrobial agents to provide enhanced 16 protection. The antimicrobials used include, but 17 are not limited to, various benzoate derivatives, 18 such as polypropl p-hydoxybenzoate, also called 19 propyl paraben, a broad spectrum antimicrobial 20 that meets the FDA's Generally Recognized As Safe 21 specifications. 22 JUDGE GUNNING: You're going a little 23 fast in the courtroom. 24 THE WITNESS: Benzoates exhibit broad 25 spectrum antimicrobial activity against 0161 1 gram-positive and gram-negative bacteria, yeasts 2 and molds. They are stable and retain their 3 antimicrobial activity in acidic, neutral and 4 alkaline media and in the presence of proteins, 5 gums, mucilages, fats and oils. I can continue 6 with the rest of this if you would like. 7 BY MR. OLSON: 8 Q That's okay, Mr. Bonace. Directing your 9 attention to Bates page 257. What is this page? 10 A This is from that same third mailing that I 11 received from Josh Rybicki and its information 12 concerning POLY-Guard greases. 13 Q Is there language on this page that is of concern 14 to you in your enforcement work? 15 A Yes. There's several places where there's 16 language. The first one, first item I see is on 17 the left-hand side. Let's see, the first 18 sentence contains the language and an exclusive 19 new antimicrobial additive for lubrication of 20 high speed and high temperature meat, poultry, 21 vegetable, fruit and beverage processing 22 machinery. The last sentence of this same -- 23 under application, the bonus is a high 24 performance H1 lubricating grease with Micronox 25 JAX exclusive antimicrobial chemistry possessing 0162 1 true knockdown capabilities. 2 Further down on the left-hand side it 3 says at the very -- On the bottom of the 4 left-hand side under performance it says since 5 June 1st, 2001 JAX POLY-Guard FG contains 6 Micronox, a new technology food-grade 7 antimicrobial, that provides a performance level 8 of protection heretofore unseen in the lubricant 9 field. Until now most antimicrobial agents and 10 food-grade lubricants have provided control of 11 bacterial growth which inhibits further 12 development of the colony. Now for the first 13 time in a food-grade lubricant JAX POLY-Guard FG 14 with Micronox provides significant knockdown 15 capabilities with all common forms of bacterial 16 contamination including Listeria, E. coli and 17 Salmonella. 18 And there's two more bulleted items I 19 see at the bottom. Bottom left, powerful 20 antimicrobial performance. Bottom right, added 21 step in microbial protection programs. 22 Q Directing your attention to Bates page 259, 23 Mr. Bonace. What is this page? 24 A This is from that third mailing I received from 25 Josh Rybicki and it's information concerning 0163 1 Magna-Plate 78 fluids. 2 Q Is there language on this page that's of concern 3 to you in your enforcement work? 4 A Yes. 5 Q What is that language? 6 A I see on the right-hand side the last two 7 paragraphs, Both products incorporate JAX new 8 proprietary antimicrobial additive technology 9 Micronox for enhanced product protection against 10 a wide variety of microbial agents including 11 yeasts, molds, gram-positive and gram-negative 12 bacteria. And it continues. A first in 13 food-grade lubricants JAX Micronox provides 14 significant knockdown performance and has proven 15 especially effective against Listeria, E. coli 16 and Salmonella on contact and over extended 17 lubrication intervals. 18 Q I direct your attention to the next page, 19 Mr. Bonace, Bates page 260. What is this page? 20 A This is more, another page in that third mailing 21 I received from Josh Rybicki, and it concerns 22 technical information concerning Magna-Plate 78. 23 Q And similarly on this page is there language 24 that's of concern to you in your enforcement 25 work? 0164 1 A Yes. The lower third of the page where -- under 2 the heading antimicrobial protection, that entire 3 area seems to demonstrate that Magna-Plate is 4 able to control Listeria, E. coli and Salmonella. 5 Q Mr. Bonace, directing your attention next to 6 Bates page 270, what is this page? 7 A This is another page from that third mailing I 8 received from Josh Rybicki. 9 Q Is there language on this page that is of concern 10 to you in your enforcement work? 11 A Well, yes, there is. 12 Q What is that language? 13 A The heading of it, Plant Microbial Knockdown 14 Results, possibly the entire page seems to be 15 dealing with the ability of some of Behnke 16 Lubricants to control E. coli, yeast and mold. I 17 think it's POLY-Guard FG-2 specifically. 18 Q Mr. Bonace, directing your attention next to 19 Bates page 271, what is this page? 20 A This is another page from that third mailing I 21 received from Josh Rybicki. 22 Q And is there language on this page that is of 23 concern to you in your enforcement work? 24 A This entire page would be of concern. It's all 25 dealing with JAX POLY-Guard FG-2 and its 0165 1 antimicrobial properties and mentioning 2 specifically Listeria, yeast and mold. 3 Q Mr. Bonace, directing your attention to the next 4 page, Bates page 272, what is this page? 5 A This is another page from that third mailing I 6 received from Josh Rybicki. 7 Q And is there language on this page that's of 8 concern to you in your enforcement work? 9 A The top half of the page, where it says 10 independent lab results there's a diagram here 11 showing POLY-Guard FG to apparently be better 12 able to control Listeria, E. coli and Salmonella 13 than two competitor products. 14 Q Mr. Bonace, I believe you mentioned that you did 15 an investigation at a facility called Badger 16 Plastics & Supply? 17 A Yes, I did. 18 Q I'd like to direct your attention to what's been 19 marked as Complainant's Exhibit 9. What is 20 Complainant's Exhibit 9? 21 A This is my inspection report from my inspection 22 at Badger Plastics & Supply. 23 Q And when did you write this report? 24 A Shortly after the March 8th inspection. 25 Q When did you do this investigation, Mr. Bonace? 0166 1 A On March 8th, 2007. 2 Q And what information did you rely on when you 3 wrote this report? 4 A My notes and my memory. 5 Q And how well did you remember the details of the 6 investigation when you wrote the report? 7 A Very well. 8 Q And how accurately does the report summarize your 9 investigation? 10 A Very accurately. 11 Q Mr. Bonace, did you collect any documents from 12 Badger Plastics & Supply? 13 A I did. I -- In addition to taking photographs of 14 POLY-Guard FG-2 tubes I collected a brochure that 15 Badger had. Badger appeared to be a distributor 16 for Behnke Lubricants. I have brochures and I 17 also collected an invoice. 18 Q I'd like to direct your attention first to Bates 19 pages 284 to 286. What are these pages? 20 A This is a brochure that Badger had and my 21 understanding was it was to give to their 22 customers since they distributed Behnke 23 Lubricants' products. 24 Q Directing your attention to Bates page 285, 25 Mr. Bonace, the right-hand side of this page, is 0167 1 there information on this page that is of concern 2 to you in your enforcement work? 3 A Yes. All that page, it all deals with 4 antimicrobial properties of POLY-Guard FG-2 and 5 compares them in one of the diagrams to a couple 6 competitor products against Listeria, E. coli and 7 Salmonella. 8 Q Mr. Bonace, you mentioned that you took some 9 photographs of some products there. What 10 products were those? 11 A POLY-Guard FG-2. 12 Q Directing your attention to Bates page 283, what 13 is this page? 14 A This is one of the photos I took of the 15 POLY-Guard FG-2 tubes that were in stock at 16 Badger Plastics. 17 Q Is there any language in this photograph that's 18 of concern to you? 19 A Yes. It's the same language I read off the tube 20 that was collected by the Wisconsin inspector. I 21 don't know if I can read it all on this 22 particular photo, but certainly you can see 23 Micronox antimicrobial in the larger print. 24 Q And you found this tube at Badger Plastics & 25 Supply? 0168 1 A Yes, I did. 2 Q And how does this tube compare with the tube that 3 has been labeled Complainant's Exhibit 38 that 4 you looked at previously? 5 A It is identical. 6 Q Mr. Bonace, you mentioned that you collected a 7 couple of invoices. Directing your attention to 8 Bates page 282, what is this page? 9 A This is a copy of an invoice I collected during 10 my inspection at Badger Plastics. 11 Q And is there any information on this page that is 12 of interest to you in your enforcement work? 13 A Yes. It shows the sale by Behnke Lubricants to 14 Badger Plastics of JAX HALO-Guard FG-2 and JAX 15 POLY-Guard FG-2. 16 MR. OLSON: Your Honor, Complainant 17 moves to admit Complainant's Exhibit 9. 18 JUDGE GUNNING: Does counsel reserve -- 19 MR. McILNAY: Yes, Your Honor. 20 JUDGE GUNNING: -- objection? 21 MR. McILNAY: Yes, Your Honor. 22 BY MR. OLSON: 23 Q Mr. Bonace, another facility that you mentioned 24 previously is Perlick Corporation. You did an 25 investigation there? 0169 1 A Yes, I did. 2 Q What kind of facility was the Perlick 3 Corporation? 4 JUDGE GUNNING: Counsel, I assume we 5 have in addition Seneca and at least -- Is there 6 any other facility? 7 MR. OLSON: Yes, Your Honor. There's a 8 facility called KHS. There's also a facility 9 called Sara Lee Corporation. 10 JUDGE GUNNING: Perhaps we could 11 consolidate some of the testimony that is very 12 similar in nature and perhaps summarize it and 13 I'll accord some latitude on Direct assuming 14 counsel does not have any objection -- 15 MR. McILNAY: None. 16 JUDGE GUNNING: -- as to the nature of 17 these documents. 18 MR. OLSON: Okay. Your Honor, these, 19 all of Mr. Bonace's investigation reports have 20 been stipulated authentic. We only concern 21 ourselves with relevancy and that is what in part 22 this testimony from Mr. Bonace is designed to do, 23 is to establish the relevancy of those 24 investigation reports. I will attempt to just 25 briefly hit on the highlights of those. 0170 1 JUDGE GUNNING: Perhaps a somewhat 2 leading question may facilitate that. 3 MR. OLSON: Okay. 4 Q Mr. Bonace, you mentioned you performed an 5 investigation at Perlick? 6 A Yes, I did. 7 Q Did you find anything of interest in your 8 enforcement experience at Perlick? 9 A I believe at Perlick I also saw that they had a 10 tube of POLY-Guard FG-2 that, again, was 11 identical to the other tubes that we've talked 12 about, the same antimicrobial claims. 13 Q Mr. Bonace, you mentioned that you had performed 14 an investigation at the Sara Lee Corporation? 15 A Yes. 16 Q Directing your attention to what's been marked as 17 Complainant's Exhibit 11, is this your 18 investigation report? 19 A Yes, it is. 20 Q What was the date of that investigation? 21 A March 8th, 2007. 22 Q And during that investigation did you discover 23 anything that was of interest to you in your 24 enforcement position? 25 A Yes. Sara Lee had in their possession at least 0171 1 one tube of POLY-Guard FG-2 identical to the 2 other tubes that we've looked at and discussed 3 today and with the same antimicrobial claims that 4 I have read to you earlier. 5 Q And Mr. Bonace, did you collect any purchase 6 orders that day at Sara Lee? 7 A Yes, I believe I did. 8 Q Directing your attention to what's been marked as 9 Complainant's Exhibit 11, Bates page 296, is that 10 the purchase order you collected that day? 11 A Yes. That's a purchase order for I believe 12 POLY-Guard FG-2. 13 Q Who did they purchase that from? 14 A From Badger Plastics & Supply. 15 Q Mr. Bonace, you mentioned that you performed an 16 investigation at Seneca Foods Corporation. I'd 17 like to direct your attention to Complainant's 18 Exhibit 12. What is Complainant's Exhibit 12? 19 A This is my inspection report for my inspection at 20 Seneca Foods on March 7. 21 Q Did you find anything of interest to you in your 22 enforcement position during your investigation of 23 Seneca Foods? 24 A Yes. They had literature on-site with many of 25 the antimicrobial claims we've already seen 0172 1 today. And in addition I was forwarded an E-mail 2 that Mr. Perzichilli at Seneca Foods had received 3 from a Behnke Lubricants' representative with 4 more materials containing antimicrobial claims 5 concerning Behnke Lubricants. 6 Q And who is Mr. Perzichilli? 7 A His title -- He worked for Behnke Lubricants. I 8 can look at his title in this report if that's 9 okay. He was a seamer specialist. 10 Q Mr. Bonace, directing your attention to say 11 what's been marked as Complainant's Exhibit 12A, 12 what is 12A? 13 A This is the E-mail that was forwarded to me by 14 Jerry Perzichilli that he had received from Chris 15 Foti of Behnke Lubricants and with the 16 attachments -- Well, sorry, the attachments 17 aren't on that particular page. 18 Q Directing your attention back to your inspection 19 report in Complainant's Exhibit 12, specifically 20 to Bates pages 303 and to 306. Are these the 21 attachments that were E-mailed to you, 22 Mr. Bonace? 23 A Yes, they are. 24 Q And do these attachments come -- what products do 25 these attachments concern? 0173 1 A HALO-Guard FG greases, POLY-Guard FG-LT and 2 POLY-Guard FG-2 and Magna-Plate -- Excuse me, 3 that would be it. 4 Q And do these pieces contain the same claims that 5 you've described previously today in your 6 testimony or substantially the same claims? 7 A Yes, they do. 8 (A recess was taken.) 9 JUDGE GUNNING: We're back on the record 10 and I remind the witness he's still under oath. 11 BY MR. OLSON: 12 Q Mr. Bonace, in addition to the investigations 13 that you've told us about already, did you 14 attempt to make a similar investigation at a 15 facility called KHS? 16 A Yes, I did. 17 Q And why were you attempting to visit KHS? 18 A Because KHS was a customer of Behnke Lubricants 19 as I learned from an invoice that the Wisconsin 20 inspector collected. 21 Q Were you successful in investigating at KHS? 22 A I was not able to see anybody that day, but I did 23 have some telephone communication with KHS. 24 Q What was the nature of that telephone 25 conversation? 0174 1 A I can't remember if I spoke directly or if we 2 exchanged voice mails, but an individual named 3 Dick Sexton promised to send me a brochure he had 4 received from Behnke Lubricants and he did mail 5 that to me. 6 Q Okay. Directing your attention to Complainant's 7 Exhibit 13, is this the document that Mr. Sexton 8 sent to you? 9 A Yes, it is. 10 Q Just very briefly, Mr. Bonace, does Complainant's 11 Exhibit 13 contain similar antimicrobial claims 12 as those you've testified to previously this 13 afternoon? 14 A Yes, it does. 15 MR. OLSON: Your Honor, at this point I 16 would like to move to admit Complainant's Exhibit 17 10, 11, 12, 12A and 13. Forgive me if I've 18 already moved to admit Complainant's Exhibit 10. 19 MR. McILNAY: In the interest of time, 20 Your Honor, I don't think I'm going to have any 21 objections to I believe it's 10, 11 and 12, was 22 it 13? 23 JUDGE GUNNING: 12A and 13? 24 MR. McILNAY: Let me look at 12A once 25 more. Yeah, 12A and 13 are fine. 0175 1 JUDGE GUNNING: So there's no objection 2 to Exhibits 10, 11, 12, 12A and 13? 3 MR. McILNAY: Correct. 4 JUDGE GUNNING: Okay. Please mark them 5 as received. And Exhibit 9 reserved objection 6 for Cross? 7 MR. McILNAY: That was -- 8 JUDGE GUNNING: That's Badger Plastics. 9 MR. McILNAY: No. I'll stipulate to the 10 admission of evidence. 11 JUDGE GUNNING: So Exhibit No. 9 is also 12 marked as received. 13 BY MR. OLSON: 14 Q Mr. Bonace, subsequent to these physical 15 investigations that you performed, did you 16 determine at that time that it was reasonable to 17 continue with your investigation? 18 A Yes. 19 Q And how did you do so, Mr. Bonace? 20 A I did more Internet investigations. 21 Q Okay. Directing your attention to what's been 22 marked as Complainant's Exhibit 6A, Mr. Bonace, 23 what is 6A? 24 A 6A contains pages I printed out from an Internet 25 search I did concerning Behnke Lubricants in 0176 1 March of 2007. 2 Q I'm going to direct your attention specifically 3 to Bates pages 110 and 111, Mr. Bonace within 6A. 4 A Okay. 5 Q And what web page were you on when you found this 6 information, Mr. Bonace? 7 A Well, the URL here at the bottom of the page says 8 JAX.com press releases, so I believe I was in 9 JAX's web page. 10 Q And do you recall how you navigated to the web 11 page this time? 12 A By putting in JAX.com. 13 Q And what is Bates pages 110 and 111? 14 A These are pages that I printed off from the 15 Internet that are -- is a press release 16 concerning Behnke Lubricants. 17 Q Okay. In the interest of time I'm going to 18 direct you to some particular statements in here 19 if it's all right with Your Honor. 20 JUDGE GUNNING: Yes. 21 BY MR. OLSON: 22 Q Okay. Mr. Bonace, the third paragraph down can 23 you describe this paragraph? 24 A It's a quote from Eric Peter. 25 Q And what's the substance of that quote? 0177 1 A It concerns the interest in, I guess in 2 developing antimicrobial products for the food 3 industry. That's my quick assessment there of -- 4 Q Mr. Bonace, I'm going to direct your attention 5 now to Bates pages 102 and 103, please; what are 6 these pages? 7 A These are from a web site of the -- It's 8 foodproduct.com. 9 Q How did you navigate to this site, Mr. Bonace? 10 A I did a search on Google putting in search words 11 like JAX or Micronox and came across a number of 12 sites including this one. 13 Q Mr. Bonace, I'd like you to again compare the 14 documents, if you can compare the pages on 110 15 and 111 that you've described as a press release 16 from Respondent's web site to pages 102 and 103 17 which you found elsewhere? 18 A The exact same quote of Eric Peter is contained 19 in both these pages. 20 Q Briefly, Mr. Bonace, if you can compare the first 21 paragraph on 110 with the first paragraph on 102? 22 A It appears to be the same language. 23 Q And the second paragraph on 110 and page 102? 24 A Again, the same language. 25 Q Mr. Bonace, does it appear to you that this press 0178 1 release has been picked up by a different web 2 site? 3 A Yes. 4 Q Mr. Bonace, I'd like to direct your attention now 5 to Bates pages 113 and 114. And how did you 6 navigate to this particular web site? 7 A Again, by putting in certain key words in a 8 search engine like Micronox or JAX and going to 9 the links that are provided from that search. 10 Q One more time, Mr. Bonace, I'm going to ask you 11 to compare page 110 with 113 and how do they 12 compare? 13 A It seems to be the exact same language of the 14 original press release from Behnke Lubricants. 15 Q So does it appear to you, Mr. Bonace, that 16 another web site has also picked up this press 17 release from JAX.com? 18 A Yes, it does. 19 MR. OLSON: Your Honor, at this time I'd 20 like to move to admit Complainant's Exhibit 6A? 21 MR. McILNAY: That I would like to 22 reserve for Cross. 23 BY MR. OLSON: 24 Q Mr. Bonace, I'd like to direct your attention to 25 Complainant's Exhibit 6B. What is 6B? 0179 1 A 6B is another web page that I printed out that I 2 found in a search I conducted, an Internet search 3 on March 26, 2007. 4 Q And is there information on this page that's of 5 interest to you in your enforcement? 6 A Yes, where it says JAX offers a high 7 performance -- excuse me. JAX offers high 8 performance, synthetics and food-grade lubricants 9 with Micronox, has 100 percent knockdown of 10 E. coli, Listeria, Salmonella and mold. 11 MR. OLSON: Your Honor, 6B just consists 12 of that one page so at this point I also move to 13 admit Complainant's Exhibit 6B. 14 MR. McILNAY: I'd like to reserve my 15 objection for Cross. 16 BY MR. OLSON: 17 Q Mr. Bonace, I'd like to direct your attention now 18 to Complainant's Exhibit 6C and just generally, 19 Mr. Bonace, how would you describe this set of 20 what appear again to be downloaded Internet 21 pages? 22 A This set for 6C? 23 Q Yes. 24 A It's a number of exhibitions for various 25 organizations concerned with food processing, and 0180 1 they all have -- JAX is one of the participants 2 and contain some of the typical language we've 3 seen concerning Behnke Lubricants' antimicrobial 4 products and there's several different 5 exhibitions in this exhibit. 6 Q And how did you -- Did you find all of these web 7 pages that you downloaded the same way? 8 A Yes. I came across them through searches using 9 key words. 10 Q Specifically looking at Bates pages 11 EPA124 through 151, this information appears to 12 document one particular exhibit; is that correct, 13 Mr. Bonace? 14 A Yes. It looks like it's from the Ozark Food 15 Processors Association Annual Convention. 16 Q Which year, Mr. Bonace? 17 A Well, it gives the exhibitors for 2006 with a 18 mention to the upcoming 2007, so I believe it's 19 for the 2006 year. 20 Q Directing your attention specifically at Bates 21 page 141, Mr. Bonace, which is where Respondent's 22 advertisement is, can you read that advertisement 23 for us, please Mr. Bonace? 24 A The whole thing? 25 Q Please. 0181 1 A JAX USA, Behnke Lubricants, is a manufacturer of 2 high technology industrial synthetic and 3 food-grade lubricants founded in 1955. JAX 4 produces conventional and extreme performance 5 synthetic lubricants for industrial 6 manufacturing, transportation, construction, food 7 processing and numerous other industry segments. 8 JAX has remained the pioneer of high technology 9 food processing and industrial synthetic 10 lubricants over the last four decades by 11 understanding the rigorous applications and 12 developing the products to exceed their needs. 13 To help plants with their concerns on food 14 safety, JAX introduced Micronox, a proprietary 15 antimicrobial additive package for microbial 16 knockdown performance. 17 Q Mr. Bonace, directing your attention to Bates 18 page 152, what expo is described on these pages, 19 Mr. Bonace? 20 A The Process Expo, Pack Expo International 2007. 21 Q I would like to direct your attention to that 22 Bates page 152 where it appears that JAX 23 Lubricants' advertisement is. Is there language 24 here that you can point out briefly that is of 25 concern to you in your enforcement work? 0182 1 A Yes, on the right-hand side where the JAX ad is. 2 The fourth paragraph down it says JAX HALO-Guard 3 FG greases incorporate JAX new proprietary 4 antimicrobial additive technology, Micronox, to 5 provide enhanced antimicrobial protection for the 6 lubricant. 7 Q Mr. Bonace, I'd like to direct your attention to 8 the next page. And does this appear to be the 9 same expo? 10 A The same expo but the year 2006. 11 Q And the page you just looked at, Mr. Bonace, 12 remind us what year that was for, Bates page 152? 13 A That was for 2007. 14 Q Bates page 153 is again JAX's advertisement from 15 the previous year. Is there the same language on 16 this page, Mr. Bonace? 17 A Yes. Just like what I just read to you from 18 2007. 19 Q Mr. Bonace, I'd like to direct your attention 20 next to Bates page 154. What's the year on this 21 one, Mr. Bonace? 22 A This is 2005. 23 Q And is that same language here, Mr. Bonace? 24 A Yes, it is. 25 Q Mr. Bonace, I'd like to direct your attention to 0183 1 Bates pages 157 through 172, which is the rest of 2 Complainant's Exhibit 6C. This appears to be 3 another of these expo advertisements that you 4 downloaded titled the CLFP Expo. What does CLFP 5 stand for? 6 A I believe that is the California League of Food 7 Processors. 8 Q Directing your attention specifically to Bates 9 page 164, Mr. Bonace, on the right-hand side of 10 that page is an advertisement for JAX. Is there 11 information here that you can point out for us 12 that's of concern to you in your enforcement 13 work? 14 A Yes. There are a couple sentences here. Under 15 the write-up for JAX Behnke Lubricants on the 16 right-hand side in the middle it says, One new 17 advance in the fight against microorganisms is 18 Micronox, JAX antimicrobial additive technology, 19 that provides immediate and significant knockdown 20 performance on a wide spectrum of microbial 21 contaminants. This development alone is 22 providing HACCP, H-A-C-C-P, programs a powerful 23 new weapon in their ongoing battle against 24 microorganisms. 25 Q What's the date on this particular expo, 0184 1 Mr. Bonace? I think you'll find it on the top of 2 the page? 3 A February 2003. 4 Q Mr. Bonace, I think you'll be relieved and 5 everyone will be relieved that we're going to be 6 done looking at these claims for a while. I 7 would like to spend a little bit more time, with 8 you though, sir, and talk with you about the 9 penalty that has been proposed by the Agency in 10 this case. 11 Just historically and personally, 12 Mr. Bonace, how many times have you been involved 13 in calculating the proposed penalty for 14 administrative complaints under FIFRA? 15 A Over 100 times. 16 Q And are you, therefore, familiar with FIFRA's 17 statutory provisions for the assessment of 18 administrative penalties? 19 A Yes, I am. 20 Q And what statutory authority, if any, authorizes 21 EPA to seek administrative penalties? 22 A Section 14 of FIFRA. 23 Q Mr. Bonace, do you recall what factors must be 24 considered in the assessment of penalties for 25 Section 14? 0185 1 A Yeah. There are three factors. The 2 appropriateness of the penalty to the size of the 3 business, the effect of the penalty on the 4 ability of the entity to continue in business and 5 the gravity of the violation. 6 Q Mr. Bonace, has EPA developed any guidance for 7 applying these statutory penalties factors under 8 FIFRA? 9 A We have an enforcement response policy. 10 Q I'm going to ask you to switch volumes and look 11 at Volume II, Mr. Bonace. And specifically at 12 Complainant's Exhibit 33? 13 A Okay. 14 Q What is Complainant's Exhibit 33, if you 15 recognize it? 16 A This is the enforcement response policy for 17 FIFRA. 18 Q And generally is this the guidance document used 19 by EPA to calculate penalties under FIFRA? 20 A Yes, it is. 21 Q Are there any other guidance documents that EPA 22 uses to adjust penalties under FIFRA? 23 A There is a guidance on penalties, how we adjust 24 our penalties upward per the Civil Monetary 25 Penalty Inflation Adjustment Act. 0186 1 Q I'd like to direct your attention to 2 Complainant's Exhibit 34, Mr. Bonace. What is 3 34? 4 A This is that policy for adjusting penalties for 5 inflation. 6 Q I hate to do it to you, but I'm going to refer 7 you back now to Volume I and, specifically, to 8 Complainant's Exhibit 14A. Mr. Bonace, who 9 initially calculated the penalty amount of 10 $50,050 in this matter? 11 A I did. 12 Q And what guidance did you use, if any? 13 A The enforcement response policy we just looked at 14 in addition to the policy for penalty inflation 15 that we just looked at. 16 Q I apologize, Mr. Bonace. I've directed you to 17 the wrong exhibit. Would you look please at 18 Exhibit 14B? Do you recognize this exhibit? 19 A This is a narrative on how I calculated the 20 penalty for Behnke Lubricants. 21 Q And does this penalty explanation accurately and 22 completely describe how you calculated the 23 penalty proposed in the complaint? 24 A Yes, it does. 25 Q And does this exhibit reflect what your oral 0187 1 testimony would be if I asked you to explain to 2 the Court how you proposed the penalty? 3 A Yes, it would. 4 MR. OLSON: Your Honor, at this time I 5 ask the Court to accept Exhibit 14B as 6 Mr. Bonace's written testimony concerning the 7 calculation of the proposed penalty in this 8 matter as allowed specifically by Rule 22.22C, 9 allows written testimony in lieu of oral 10 testimony. 11 MR. McILNAY: I would not have any 12 objection to that, Your Honor. 13 JUDGE GUNNING: No objection? 14 MR. McILNAY: No. 15 JUDGE GUNNING: So 14B is received. 16 BY MR. OLSON: 17 Q Now, Mr. Bonace, I'd like to direct your 18 attention back to Complainant's Exhibit 14A. 19 What is 14A? 20 A That's the -- my penalty calculation worksheet. 21 Q And does this penalty calculation worksheet 22 accurately describe how you calculated the 23 penalty in detail? 24 A Yes, it does. 25 MR. OLSON: Okay. Your Honor, in 0188 1 addition to Exhibit 14B that has been admitted as 2 Mr. Bonace's written testimony about penalty, at 3 this point I move to admit Complainant's Exhibit 4 14A and also Complainant's Exhibits 33 and 34. 5 MR. McILNAY: I have no objection to 6 14A. I think the -- Is it 33 and 34 are the 7 nature of policy of -- internal to the EPA and 8 the Court could take judicial notice of it, but I 9 don't know that it's evidentiary in nature. 10 MR. OLSON: Your Honor, if it helps, 11 both Complainant's Exhibit 33 and 34 have been 12 stipulated as authentic. Complainant's Exhibit 13 34 has also been stipulated as admitted, so the 14 issue really is only with Complainant's Exhibit 15 33. 16 JUDGE GUNNING: I don't see 34 as 17 authenticity only. And the same with 33. 18 MR. OLSON: I apologize, Your Honor. 19 MR. McILNAY: I just don't see the -- 20 It's the Agency's policy. 21 JUDGE GUNNING: Right. I can take 22 administrative notice of it regardless. But the 23 question remains is there an objection or not? 24 MR. McILNAY: No. 25 JUDGE GUNNING: It's marked as received 0189 1 but it matters not. So Exhibits 33 and 34 are 2 marked as received. 3 BY MR. OLSON: 4 Q Mr. Bonace, we won't go by rote through your 5 penalty calculation, but there are two items from 6 your penalty calculation that I would like to 7 discuss with you briefly, the size of the 8 business category used in determining the base 9 penalty and also the value that you've assigned 10 for culpability. 11 Just briefly can you explain for us 12 under the penalty policy that you followed what 13 range of values can you assign for size of 14 business? 15 A The top value, the one is for $1 million of gross 16 sales per year and then the, category two is 17 between 300,000 and a million and then below 18 300,000 is category 3. 19 Q And what size of business category did you assign 20 in your penalty calculation here? 21 A One. 22 Q And why did you assign that category? 23 A That was based on a Dun & Bradstreet that showed 24 gross sales of Behnke Lubricants of well over 25 $1 million. 0190 1 Q Mr. Bonace, I'd like to direct your attention to 2 Complainant's Exhibit 27, which is way at the 3 back of Volume I of Complainant's Exhibit? 4 MR. McILNAY: Your Honor, we've 5 stipulated to this. 6 JUDGE GUNNING: Well, that was in 7 question. The ability to pay was clearly 8 stipulated to in the prehearing exchange. It was 9 not clear that the size of business was 10 stipulated to and, in fact, I raised that in the 11 March 5, 2008 decision, but if it's stipulated 12 to, we can dispense with it if you want to. 13 MR. McILNAY: Yes, we are. 14 JUDGE GUNNING: Very good. 15 MR. OLSON: We'll dispense with those 16 questions, Mr. Bonace. 17 JUDGE GUNNING: Thank you. 18 BY MR. OLSON: 19 Q I would like briefly to discuss with you your -- 20 one last thing, your culpability value you 21 assigned. If you can also briefly describe for 22 us under the penalty policy that you followed 23 what values you can assign for culpability. 24 A Culpability, you can assign three values, zero, 25 two or four. 0191 1 Q And under what circumstances do you assign a 2 value of zero, Mr. Bonace? 3 A Zero is when the violation was neither willing -- 4 was neither willful or knowing and the violater 5 took immediate steps to correct the violation. I 6 believe that's most of what's under zero. 7 Q Would it refresh your recollection to take a look 8 at that policy, Mr. Bonace? If so, take a look 9 at Bates page 698, which is back then in 10 Complainant's Exhibit 33, and when you've had a 11 chance to refresh your recollection, just look up 12 at me. 13 A The one that I think -- Sorry. 14 Q Go ahead. 15 A The one thing I overlooked in the zero is did not 16 result from negligence in addition to neither 17 knowing nor willful. 18 Q And under what circumstances will you assign a 19 value of two under the penalty policy? 20 A For either culpability unknown or violation 21 resulting from negligence. 22 Q And under what circumstances would you assign a 23 value of four, Mr. Bonace? 24 A When the violation was knowing or willful and 25 there was knowledge of the general hazardness of 0192 1 the action. 2 Q Mr. Bonace, in this penalty calculation what 3 factor did you apply for culpability? 4 A I applied a two. 5 Q And how did you originally determine that factor, 6 that value? 7 A At first I considered culpability unknown for a 8 value of two. 9 Q And, Mr. Bonace, is there any information that 10 you have now that you didn't have at the time you 11 initially calculated the penalty? 12 A Yes, there's a couple things. 13 Q Okay. I would like to direct your attention to 14 what's been marked as Complainant's Exhibit 36 in 15 Volume II. 16 MR. OLSON: And, Your Honor, for just 17 ease of moving forward quickly, Complainant's 18 Exhibit 36 has been stipulated as authentic and 19 admissible by the parties. 20 Q Do you recognize Complainant's Exhibit 36, 21 Mr. Bonace? 22 A Yes. It's part of a lawsuit by Behnke Lubricants 23 against NSF International. 24 Q I'd like to just briefly direct your attention to 25 Bates page 243. 0193 1 A 243? 2 Q I'm sorry, 743, Mr. Bonace. Will you please read 3 the certification language there for the Court? 4 A I, John W. Sanfilippo, Clerk of the United States 5 District Court, certify that the attached is a 6 true and full copy of the original record in 7 Case No. 06-C-353, Behnke Lubricants, Inc. v. NSF 8 International. 9 Q Mr. Bonace, moving within this document forward 10 to Bates page 750, can you please read for the 11 Court the sentence that begins immediately under 12 the word Complaint? 13 A Could you repeat the page? What page again? 14 Q 750. 15 A Plaintiff, Behnke Lubricants, Inc. alleges 16 against the defendant, NSF International as 17 follows. 18 Q And moving forward within the Complaint here I'd 19 like to direct you to Bates page 755, which is 20 also page 6 of the Complaint and direct you 21 specifically to paragraph 18. If you would 22 please read the first line -- I'm sorry, the 23 first sentence in paragraph 18. 24 A In 2003, NSF contacted Behnke and informed it 25 that NSF considered that references to some 0194 1 antimicrobial properties of Micronox in 2 association with products certified by NSF were 3 improper. 4 Q And, Mr. Bonace, one more time, please, turn the 5 page to page 7 of the Complaint also written as 6 EPA0756 and look at paragraph 21. If you would, 7 please, read the entirety of paragraph 21 into 8 the record? 9 A NSF went further and demanded that Behnke seek 10 approval from the United States Environmental 11 Protection Agency to register the Micronox 12 product with the EPA as a pesticide and to label 13 and identify the Micronox product as a pesticide. 14 Q Mr. Bonace, what do these documents show? 15 A They show knowledge by Behnke Lubricants starting 16 as far back, I think, as 2003 about potential 17 pesticidal claims, and very specifically in 2005 18 that is when NSF suggested that Behnke seek 19 approval from EPA. And that was more than a year 20 before our inspection at Behnke Lubricants. 21 Q Now, Mr. Bonace, if Respondent were even yet not 22 in compliance with FIFRA, how would that affect 23 your impression of Respondent's culpability? 24 A That would be a negative impression of 25 culpability. It would lead me to apply a higher 0195 1 value. 2 Q Have you looked at Respondent's web site 3 recently, Mr. Bonace? 4 A Yes. This morning I looked at it. 5 Q And what did you find, Mr. Bonace? 6 A I found a few pesticidal claims still on their 7 web site. 8 Q Mr. Bonace, Respondent has raised the argument in 9 its briefs that culpability for this penalty for 10 that value should have been zero, do you agree? 11 A No, I don't. 12 Q Why not? 13 A Because to have a value of zero assigned, among 14 other things, they would have had to have taken 15 steps to correct the violation and not -- and the 16 violation could not have been knowing. 17 Q Mr. Bonace, if you were calculating the penalty 18 again now, what value would you propose for 19 culpability? 20 A I would -- 21 MR. McILNAY: I'm going to object, Your 22 Honor. This is speculative and invades the 23 province of the Court. 24 JUDGE GUNNING: I can't hear you. 25 MR. McILNAY: It's speculative and 0196 1 invades the province of the Court on this 2 particular issue. 3 MR. OLSON: Your Honor, Mr. Bonace is -- 4 JUDGE GUNNING: Wait a minute. One at a 5 time. 6 MR. McILNAY: We have a claim that's the 7 subject of this Complaint and, you know, gravity 8 is an issue, but what he would have done now is 9 irrelevant given the request in the Complaint. 10 MR. OLSON: Your Honor, one of the 11 values or one of the things that you will have to 12 consider, should you choose to propose a penalty 13 in this matter, is culpability. Mr. Bonace is an 14 experienced enforcement specialist with EPA. He 15 has calculated many penalties. He has new 16 information since he proposed the initial penalty 17 in the Complaint and his testimony is relevant, 18 therefore. 19 JUDGE GUNNING: Okay. I'll allow it 20 since under the penalty calculation, specifically 21 Section 22.27, I can consider other calculations, 22 so for that purpose alone I will allow it. 23 MR. OLSON: Thank you, Your Honor. 24 JUDGE GUNNING: It's 22.27(b). 25 MR. OLSON: Your Honor, Complainant has 0197 1 no further questions for Mr. Bonace. 2 JUDGE GUNNING: We didn't get an answer, 3 though, to the question. 4 BY MR. OLSON: 5 Q I'm sorry. Mr. Bonace? What value would you 6 propose? 7 A A four. 8 Q And why is that? 9 A Because Respondent had knowledge and Respondent 10 has not taken steps to correct the violation 11 completely to date. 12 Q Thank you, Mr. Bonace. 13 MR. OLSON: No further questions, Your 14 Honor. 15 JUDGE GUNNING: We did very well then. 16 Now, it's 5:00 and we could begin Cross. It 17 seems to me that the case is moving along more 18 quickly perhaps than was originally anticipated; 19 is that correct? 20 MR. CHA: Yes, Your Honor. 21 JUDGE GUNNING: So we could go until 22 tomorrow, depending on the preferences of the 23 parties, I'm willing to stay and continue. How 24 many witnesses, additional witnesses do you 25 anticipate calling? 0198 1 MS. O'MEARA: Your Honor, we anticipate 2 calling two additional witnesses, both of them 3 experts so both their testimony will be perhaps 4 the same length as Mr. Bonace's on Direct. 5 JUDGE GUNNING: So there's a good chance 6 that they could conclude tomorrow? 7 MS. O'MEARA: Yes. There is a good 8 chance. 9 JUDGE GUNNING: So, I'll allow the 10 parties to weigh in on this. 11 MR. McILNAY: In that event, Your Honor, 12 I would quite honestly prefer to adjourn now. We 13 had anticipated this was going to go faster and 14 that was one of the reasons I arranged for 15 witnesses to fly in on Wednesday to be available 16 on Thursday. 17 In addition, obviously I have Mr. Peter 18 and Mr. Paquette here ready to go when -- as soon 19 as the Complainant rests with its case. If we 20 can get done with their witnesses tomorrow, I'll 21 bet it won't take more than two days to put our 22 evidence in on Friday for rebuttal. 23 JUDGE GUNNING: That would be terrific. 24 Is that with the Cross tomorrow or today? 25 MR. McILNAY: I'm suggesting that we 0199 1 adjourn for the day. It shouldn't be a very long 2 cross-examination of Mr. Bonace tomorrow. 3 JUDGE GUNNING: EPA, do you have any 4 objection? 5 MR. CHA: I'm not sure it's an objection 6 I want to raise. I just want to express a 7 concern. Respondent has identified 22 witnesses, 8 and at this point we have no idea how many 9 they're actually going to call. We have two 10 left. 11 MR. McILNAY: I took that up, Your 12 Honor, before we started putting witnesses on. I 13 have a list to give them. Unfortunately, I 14 didn't bring it with me. I left it at my office. 15 I don't know if they have access to their 16 E-mails, but I E-mailed it to Attorney O'Meara 17 and actually all three of them. 18 MS. O'MEARA: I actually have looked at 19 that list during the break and it appears that 20 perhaps three of the 22 are no longer being 21 called? Or is it more? 22 MR. McILNAY: No, it's more than that. 23 And that may get whittled down. I'll tell you 24 what, by tomorrow morning I'll have it whittled 25 down. 0200 1 JUDGE GUNNING: There are two witnesses 2 here, but is there a possibility of like 10 other 3 witnesses, or -- 4 MR. McILNAY: I really don't believe so. 5 Most of those were customers and most either 6 can't make it or are unwilling to make it, so -- 7 JUDGE GUNNING: Right. 8 MR. McILNAY: I don't believe so. There 9 might be a total of eight. 10 JUDGE GUNNING: A total of eight. 11 That's pretty substantial, so -- 12 MS. O'MEARA: Two of those are experts? 13 JUDGE GUNNING: Right. So it may take a 14 little longer. 15 MR. McILNAY: It may. That is true. 16 That is true. 17 MR. CHA: In light of that, Your Honor, 18 obviously, I leave it to the Court's discretion, 19 but I would prefer that cross-examination of 20 Mr. Bonace proceed today and we can conclude. 21 JUDGE GUNNING: I think we could 22 probably finish up with this. It shouldn't take, 23 as you indicated, that long and that way we can 24 start fresh tomorrow with a new witness. 25 MR. McILNAY: Okay. 0201 1 MR. CHA: Thank you, Your Honor. 2 JUDGE GUNNING: If you want to take a 3 short break to consult, I'd be happy to give you 4 that. 5 MR. McILNAY: Oh, that would be 6 terrific. Thanks. 7 (A recess was taken.) 8 JUDGE GUNNING: Okay. 9 CROSS EXAMINATION 10 BY MR. McILNAY: 11 Q Good afternoon, Mr. Bonace. Let me start with 12 the last thing first. The last time you looked 13 at Behnke's web page was this morning? 14 A Yes. 15 Q You said there was some antimicrobial claims on 16 there. Do you remember the nature of the claims? 17 A Yes. They were antimicrobial -- specifically 18 antimicrobial. I actually have them in my pocket 19 if you would like me to pull them out. 20 Q Actually, I would. 21 A It would be under fruit and vegetable processing 22 where it says with the added benefit of Micronox 23 JAX exclusive antimicrobial chemistry, which 24 independent testing has provend to be the most 25 effective in the industry, plants can achieve an 0202 1 extra measure of sanitation protection. 2 And there's another one, JAX POLY-Guard 3 FG grease contains Micronox, the only truly 4 effective active bacteria control agent in the 5 food-grade lubricant industry. 6 There's another one under POLY-Guard 7 FG-2, FG-LT. It's under fruit and vegetable 8 processing. Now contains Micronox antimicrobial 9 for true knockdown performance against a broad 10 spectrum of microbial contaminants. 11 And under baking and oven processes, 12 under POLY-Guard FG2, FG-LT, now contains 13 Micronox antimicrobial for true knockdown 14 performance against a broad spectrum of microbial 15 contaminants. Those are what I found this 16 morning. 17 Q And you went to JAX.com? 18 A I went directly to JAX -- 19 Q Okay. 20 A -- for those. 21 Q With regard to the proposed or notice of intent 22 to file, you testified that following that we had 23 a meeting -- 24 A Yes. 25 Q -- at your office in Chicago, correct? 0203 1 A That's right. 2 Q And specifically the notice provided of that 3 meeting that this was not a settlement discussion 4 and, therefore, not subject to rules of evidence 5 that would prohibit introduction of settlement 6 discussions. Are you aware of that? 7 A Oh, that the meeting that we had -- 8 Q In Chicago. 9 MS. O'MEARA: Your Honor, Respondent's 10 counsel is asking Mr. Bonace questions that are 11 legal in nature. That's generally outside the 12 purview of Mr. Bonace's work at the Agency. 13 MR. McILNAY: I think a whole bunch of 14 what he's been asked today is legal in nature, 15 but I'll ask my questions. You object if you 16 have a problem with it being settlement 17 discussions. 18 JUDGE GUNNING: Okay. 19 THE WITNESS: Could you repeat the 20 question? 21 BY MR. McILNAY: 22 Q That question is withdrawn. 23 A All right. 24 Q Mr. Bonace, we did nothing at that meeting to 25 hide from you that we had brought a declaratory 0204 1 action case against NSF, did we? 2 A I don't think so, no. 3 Q In fact, we discussed that case at length because 4 we were making the same arguments in what we saw 5 as NFS's interference with our business that 6 we're making today? 7 A I do recall we discussed NSF. 8 Q Yes. You said your investigation started in May 9 of 2005 with a tip complaint? 10 A Yes. 11 Q And it was 2005, not '6? 12 A Yes. That was 2005 that I first received that. 13 Q Maybe I'm treading into something I'm not 14 supposed to 'cause I don't know, but can you tell 15 me who made the complaint? 16 A I can recall the attorney's name, but it wasn't 17 in reference to any specific company. It was Tom 18 Johnston. 19 Q Tom Johnston. Did he indicate from where? 20 A I don't think he did. If you mean who he was 21 making the -- 22 Q Representing. 23 A No. He didn't say who he was representing. 24 Q City? 25 A He was a Washington attorney. 0205 1 Q We've gone through a number of exhibits that are 2 your write-ups on visits you made to the specific 3 customers from -- or concerning which you had 4 received invoices from Mr. Saatkamp's 5 investigation or his inspection? 6 A Yes. 7 Q And Sara Lee was one of those, and they're a 8 processor, correct? 9 A They're involved in meats, and I believe you 10 could call them a processor. 11 Q Well, they process food, don't they? 12 A This particular plant worked with meats. 13 Q Correct. And Exhibit No. 12 is your write-up 14 of -- I'm sorry, Exhibit 11, I believe. That's 15 your write-up of your Sara Lee visit? 16 A Yes, it is. 17 Q I'd like to direct your attention to the last 18 paragraph on EPA0293. 19 A Okay. 20 Q Do you see that? 21 A Yes. 22 Q It says Greg Ehrle said that Sara Lee currently 23 only uses JAX Magna-Plate and POLY-Guard. 24 Mr. Mommsen, I hope I'm pronouncing that right, 25 who was identified as the person who chose 0206 1 food-grade lubricants for Sara Lee, when asked if 2 he knew or had heard of any antimicrobial 3 properties of Behnke Lubricants products said he 4 had no such specific knowledge. Is that correct? 5 A Yes. 6 Q And you correctly took down what Mr. Mommsen had 7 told you on that day? 8 A Yes, I did. 9 Q You also went to Seneca Foods? 10 A Yes. 11 Q They're also a food processor? 12 A I believe so. 13 Q And that report of your visit there is contained 14 in the EPA's Exhibit No. 12. Would you turn to 15 EPA page 300? 16 A Okay. 17 Q You describe under Roman Numeral V, 18 Investigation, how you introduced yourself and 19 were introduced to Mr. Sisson, and that he, Mr. 20 Sisson, took you to a, quote, canning room with 21 some containers of JAX HALO-Guard FG-2. And it 22 says a container of JAX HALO-Guard FG-2 was in 23 use. The next sentence reads, The labeling on 24 the container was reviewed and no antimicrobial 25 claims were observed; is that correct? 0207 1 A Yes, that's correct. 2 Q In the same area Mr. Sisson pulled out a file of 3 MSDS's where MSDS's for JAX products were 4 observed. No antimicrobial claims were observed 5 in the MSDS's; is that correct? 6 A That's correct. 7 Q So then it was Inspector Perzichilli? 8 A Jerry Perzichilli. 9 Q Who sent you an E-mail about some materials he 10 had received at an earlier date; is that correct? 11 A Yes. 12 Q Which had been forwarded to him actually in 13 October of 2006; is that correct? 14 A I'll just look at the E-mail here. Yes. That's 15 correct. 16 Q That -- For the record, the E-mail is marked as 17 Exhibit 12A, is it? 18 A 12A. 19 Q Although not perhaps perfect, it does appear that 20 Behnke has taken steps to eliminate some of the 21 claims that the EPA has found disfavor with? 22 A I don't know. 23 Q Other than the labels you viewed at -- Well, when 24 did you go to Seneca? 25 A In March 7, 2007. 0208 1 Q 2007. And there were no microbial claims on 2 those two product labels? 3 A On the MSDS's and the container of Magna-Plate? 4 Q Yes. 5 A No. I did not see any antimicrobial claims on 6 those. 7 Q When you were -- strike that. 8 We heard a lot about your background. 9 Have you had occasion prior to this one where we 10 were looking at lubricants as food additives? 11 A No, I don't think so. 12 Q Is it your position and your recommendation that 13 the penalty be assessed against my client because 14 of any health hazards related to their 15 lubricants? 16 A It was my recommendation that the penalty be 17 assessed because of health hazards? 18 Q Right. 19 A My recommendation is the penalty be assessed for 20 distribution or sale of unregistered pesticides. 21 Q Based solely on the labeling? 22 A Labeling, claims in a variety of places. 23 Q In the advertisement -- I lump that all under the 24 labeling. 25 A Yes. 0209 1 Q In fact, it appears that the samples of my 2 client's grease that were picked up by the 3 Wisconsin Department of Agriculture haven't been 4 touched for any kind of testing to see if they're 5 toxic or anything like that? 6 A No. There's been no testing done by us. 7 Q So whether or not they are, in fact, safe for 8 human consumption is not an issue with the EPA? 9 A No. 10 Q That's a double negative so -- That's not a claim 11 you're making, correct? 12 A No. It's not a claim we're making. 13 Q Is it now the position of EPA that even just the 14 use of the trade name Micronox would be an 15 antimicrobial claim? 16 A I don't know. 17 Q In your entire investigation which lasted, I 18 guess, over a year, did you find any instance 19 where my client made these claims with respect to 20 products not identified as food grade? 21 A I can't recall if every time I -- if all these 22 products that I've looked at were food grade or 23 not. 24 Q You visited American Foods up in Green Bay. Did 25 you tour the plant to see how the Behnke products 0210 1 were used in the plant? 2 A I did on a later date, not on March 7, 2007, 3 but -- 4 Q And we don't have a write-up on the later visit, 5 do we? 6 A No. 7 Q When was that visit? 8 A I think it was early this year. 9 Q In connection with this case? 10 A Yes. 11 Q Seneca Foods, did you get a tour of the plant to 12 see how the products were actually used? 13 A No. I didn't get a tour. 14 Q Sara Lee? 15 A No. 16 Q And Badger Plastics was, in fact, a distributor 17 so they were kind of the middle man so there was 18 nothing to see there, correct? 19 A Not that I saw. 20 Q And was it FSG, F -- 21 A KHS. 22 Q KHS, you didn't get a chance to -- 23 A No. 24 Q -- talk to them. 25 Now, one of the other entities that was 0211 1 visited was Jennie-O Turkey but you didn't visit 2 them; is that correct? 3 A That's correct, I did not visit them. 4 Q And -- But did you request the assistance of the 5 Minnesota Department of Agriculture to visit 6 Jennie-O? 7 A I certainly was involved in that request. I may 8 have prepared it or it may have gone to another 9 person. 10 Q Did you receive a response back from the 11 Minnesota Department of Agriculture about the 12 results of that inspection? 13 A I received an inspection report, yes. 14 Q And that inspection report -- I apologize I'm 15 going to have to -- I know it has been submitted 16 by the EPA as -- you have the book there in front 17 of you there. 18 MS. O'MEARA: It's Complainant's Exhibit 19 15. 20 THE WITNESS: Fifteen, thank you. 21 BY MR. McILNAY: 22 Q I don't recall, you were questioned about this 23 one during Direct. Is that right? 24 A No, I was not. 25 MR. OLSON: Your Honor, the subject of 0212 1 the Jennie-O investigation Respondent has 2 admitted in its various responses to our briefs 3 in its answer that the sales were made at 4 Jennie-O, that the claims made were actually 5 made. Respondent has admitted to these. In an 6 effort to shorten the hearing, we chose not to 7 call the Wisconsin inspector -- I'm sorry, the 8 Minnesota department inspector to put that 9 evidence into the hearing since it's already been 10 admitted, the violations alleged there have been 11 admitted. 12 MR. McILNAY: We haven't admitted 13 violating anything. What we have admitted to is 14 sales to Jennie-O, but I would think it's 15 relevant. 16 MS. O'MEARA: Your Honor, if I may, the 17 Complaint, the Jennie-O Turkey portion is in 18 paragraphs 125 through 130, and according to my 19 records Behnke has stipulated to 125, 127 and 20 stipulated to 128 and has also stated, it's 21 undisputed its reply to our Motion for 22 Accelerated Decision, has stipulated to 129 and 23 it answered in its initial answer that it 24 admitted 130, which is that on or about June 27, 25 2007 Respondent distributor sold JAX HALO-Guard 0213 1 FG-LT to Jennie-O Turkey. In the interest of 2 brevity we just didn't go through that with 3 Mr. Bonace. 4 JUDGE GUNNING: I think we're getting 5 confused now. This is not before me in the 6 record. It hasn't been proposed as an exhibit; 7 however, I would allow questioning on it if it 8 was considered in calculating the penalty. 9 MR. McILNAY: I think it's not -- 10 THE WITNESS: It may be alleged in the 11 Complaint but it's not, the document is not a 12 proposed exhibit at this stage. 13 MS. O'MEARA: Correct. 14 JUDGE GUNNING: Or tendered. Respondent 15 may do so. 16 MR. McILNAY: Yes. 17 Q Mr. Bonace, I actually was able to find it after 18 all that. It is Exhibit 15 and specifically I 19 would like to direct your attention to EPA0361. 20 JUDGE GUNNING: Now I have to remind 21 everyone this is not in the record. 22 MR. McILNAY: I understand. 23 JUDGE GUNNING: Okay. 24 BY MR. McILNAY: 25 Q Mr. Bonace, Exhibit 15 has been stipulated to as 0214 1 to authenticity. In light of a potential hearsay 2 objection, let me just ask you a few foundation 3 questions. 4 The EPA works with State agencies as it 5 did in this case with the Wisconsin Department of 6 Agriculture to assist in its investigations, 7 correct? 8 A Yes. 9 Q And just like you received from Mr. Saatkamp, you 10 received a report from him as part of your 11 investigation, correct? 12 A Yes. 13 Q And in the normal course of your Agency actions, 14 you rely on those reports as being accurate? 15 A Yes. 16 Q And reliable, correct? 17 A Yes. 18 Q I'm going to offer Exhibit CX15. 19 Mr. Bonace, this is a report you 20 received in just that manner, correct? 21 A Yes, it is. 22 MR. OLSON: No objection, Your Honor, to 23 the admission of Complainant's Exhibit 15. 24 JUDGE GUNNING: Okay. So please mark 25 Exhibit 15 as received. 0215 1 BY MR. McILNAY: 2 Q Mr. Bonace, would you please turn to EPA 3 page 0361? 4 A Okay. 5 Q First of all, I'd like to direct your attention 6 to the top of the page. It indicates that a 7 Randy Alsleban is responsible for plant 8 maintenance, do you see that? 9 A Yes, I do. 10 Q Randy was made aware that Behnke products was 11 making antimicrobial claims several years ago. 12 The firm does not have any other labeling with 13 the HALO-Guard FG-LT product. No other 14 advertisement literature in regard to Behnke JAX 15 products is on hand at the facility. Do you see 16 that? 17 A Yes. 18 Q Skip down a few lines. It says a total of 10 19 tubes currently in stock at the facility. And it 20 goes on, firm uses product due to the high 21 temperature performance. Firm does not test for 22 antimicrobial claims. The firm purchases product 23 for water washout capability and food-grade 24 issues, is that what it says? 25 A Yes, it does. 0216 1 Q And then it goes on to say Micronox, firm did not 2 know what the term means; is that what it says? 3 A Yes. 4 Q This may sound like a really silly question, and 5 I hope it's the last I have for you today. As I 6 understood your testimony, you would increase 7 Behnke's culpability to a four because they 8 didn't take immediate corrective action, but 9 immediate corrective action suggests that they 10 agree that they're in violation, does it not? 11 A It does, but that's not the complete reasoning 12 behind the four. There was another factor. 13 Q Which was the NSF suit making the same -- 14 A Yes. The knowledge of -- 15 MR. McILNAY: I'll save it for 16 Mr. Edwards. 17 MR. OLSON: Your Honor, we do have a 18 brief Redirect, but I think we can get out of 19 here by 6. 20 JUDGE GUNNING: Okay. That would be 21 excellent. 22 REDIRECT EXAMINATION 23 BY MR. OLSON: 24 Q Mr. Bonace, Respondent's counsel asked you a 25 couple of questions about whether you had toured 0217 1 the facilities and viewed all their processes. 2 Mr. Bonace, do you need to see how products are 3 used at a facility to determine whether 4 pesticidal claims have been made in their sale or 5 distribution? 6 A No. 7 MR. McILNAY: I didn't hear the answer. 8 THE WITNESS: No. 9 BY MR. OLSON: 10 Q Mr. Bonace, Mr. McIlnay discussed briefly with 11 you the meeting with EPA in December of 2006 and 12 specifically that they did not hide the suit 13 against NSF at that time from you. Mr. Bonace, 14 did you during that meeting have the NSF 15 complaint in your possession to review? 16 A No. I did not see it till after that meeting. 17 Q Mr. McIlnay walked through a couple of your 18 investigations with you again just briefly. I'd 19 like to direct you to Complainant's Exhibit 11 20 again, which is your Sara Lee investigation 21 report and specifically direct you to page 22 EPA297, and what is this exhibit, Mr. Bonace, 23 again? 24 A This is a photograph of a tube of POLY-Guard FG-2 25 that was in possession of Sara Lee at the time of 0218 1 my inspection. 2 Q And it's been a while since we've talked about 3 it, but is this -- how does this tube that you 4 saw at Sara Lee compare to the tube that's been 5 marked as Complainant's Exhibit 38? 6 A It's identical with the same antimicrobial 7 claims. 8 Q Touching base quickly with your investigation at 9 the Seneca Foods Corporation again, these were 10 getting into some of the documents that we moved 11 through fairly quickly in order to save time. I 12 just want to hit on a few of those to respond to 13 Mr. McIlnay. Under -- Again, looking at Bates 14 page 308, please, and this was a piece of 15 advertising that was contained in the E-mail, is 16 that correct, that was later sent to you by 17 Mr. -- 18 A Page 308? 19 Q Yeah. 20 A Page 308 was a copy of a document that was 21 actually in their possession. 22 Q So you picked this up at the facility during your 23 investigation? 24 A Yes, I did. 25 Q And is there some of this language that's of 0219 1 concern to you on this page? 2 A Yes, there is. I note the middle paragraph, I 3 won't read it, but under antimicrobial 4 performance, and up at the top a reference to 5 antimicrobial technology. 6 Q Finally we'll touch base with Complainant's 7 Exhibit 15 that Respondent was kind enough to get 8 in for us. Directing your attention to Bates 9 page 351, there within Complainant's Exhibit 15, 10 what is this, Mr. Bonace? 11 A It's a photograph taken by the Minnesota 12 inspector of a tube of HALO-Guard FG-LT that was 13 in the possession of the Jennie-O facility. 14 Q And 352? 15 A Appears to be further photographs of the same 16 container. 17 Q And 353? 18 A More photos of that container. 19 Q Can you make out any antimicrobial claims on 20 page 353 that were on this tube? 21 A Yes, I can. There is the claim JAX HALO-Guard 22 FG-LT provides Micronox, microbial knockdown 23 performance. 24 Q Mr. Bonace, generally was there any facility that 25 you did an investigation to, that the State of 0220 1 Wisconsin investigated or the State of Minnesota 2 investigated where there were no antimicrobial 3 claims found that we've discussed today? 4 A Of all the facilities that -- including both 5 states, including all the inspections done by 6 both states? 7 Q Yes. 8 A I think all but one. 9 Q And can you describe that investigation for us, 10 briefly. 11 A The one that didn't have claims, it's not in any 12 of the records, and I can't recall the name of 13 the facility offhand. It was a Minnesota 14 inspection. 15 Q That's okay, Mr. Bonace. 16 MR. OLSON: I have no further questions 17 on redirect, Your Honor. 18 MR. McILNAY: I have a few on Recross. 19 RECROSS EXAMINATION 20 BY MR. McILNAY: 21 Q Mr. Bonace, I think it was the first or second 22 question on Redirect I popped up and said I 23 didn't hear your answer. I just want to make 24 sure I heard the question right. Was it your 25 testimony that you didn't need to see how the 0221 1 product was used to determine whether it was a 2 pesticidal claim being made? 3 A Yes. 4 Q Now, I've been real lenient about not objecting 5 to the use of antimicrobial for a reason. 6 Microbes and microorganisms are not all pests 7 under FIFRA; is that correct? 8 A Yes, that's correct. 9 Q So the fact that something makes an antimicrobial 10 claim in and of itself doesn't make it a 11 pesticide, correct? 12 A It depends on how the claim is made. 13 Q I agree. So we've gone through and we've gone 14 over and over a whole bunch of antimicrobial 15 claims without seeing how the product's used, and 16 you've concluded that it's a pesticide without 17 seeing how the product is actually used; is that 18 your testimony? 19 A In most of the cases, yes. 20 MR. OLSON: Objection, Your Honor, 21 counsel has mischaracterized Mr. Bonace's claims. 22 He's suggested that they were pesticidal. What 23 Mr. Bonace stated was that they were pesticidal 24 claims made in those -- in those advertising 25 materials. 0222 1 MR. McILNAY: He's answered the 2 question. I don't know that it makes much 3 difference now. 4 JUDGE GUNNING: Well, the testimony 5 reflects both antimicrobial, I believe, and then 6 alternatively once in a while the term 7 pesticidal. Your questions were directly 8 directed toward when the use of antimicrobial was 9 used. 10 MR. McILNAY: Correct. Correct. So -- 11 JUDGE GUNNING: Objection is overruled. 12 MR. OLSON: Objection withdrawn. 13 MR. McILNAY: All right. 14 JUDGE GUNNING: I do have a housekeeping 15 question. Exhibits 3 through 6B, counsel 16 reserved his objection based on Cross. 17 MR. OLSON: I believe 6C and 8, Your 18 Honor, are in that list of objections. 19 MR. McILNAY: Those are, I believe those 20 are all the web Internet search, I'm going to 21 withdraw my objection. 22 JUDGE GUNNING: Okay. So exhibits, 23 Complainant's Exhibits 3, 4, 5, 6A, 6B, 6C and 8 24 are marked as received; is that correct? 25 MR. OLSON: Just so the record is clear, 0223 1 Your Honor, Mr. McIlnay suggested that 2 Complainant's Exhibit 8 was an Internet 3 investigation. That's actually Mr. Bonace's 4 report of his physical investigation at the 5 American Foods facility. 6 MR. McILNAY: Oh, well, I didn't mean to 7 reserve that one anyway, so that's fine. 8 JUDGE GUNNING: Okay. So 3 through 6B 9 and 8 are marked as received. 10 MR. OLSON: Your Honor, I think it's 6C. 11 6C is one of those as well. 12 JUDGE GUNNING: Yes, you're correct. 13 Now, no further questions of this witness? 14 MR. OLSON: We have no further 15 questions. We would like to reserve Mr. Bonace 16 to be called later in the hearing if we need to. 17 JUDGE GUNNING: Very good. Okay. I 18 thank everyone for their patience today and for 19 this morning and for plugging through until 6:00 20 so we could finish with this witness. I think 21 that's very helpful. And we will meet back here 22 tomorrow at 8:30. And I cannot guarantee if 23 these rooms can be locked up, it's at your 24 discretion. I don't see it as a major problem, 25 quite frankly, but your choice. 0224 1 MR. McILNAY: I did speak to staff. 2 This room will be locked this evening and they 3 said no one else would be using it, so if it 4 wasn't valuable, it could be left and we could 5 get into here as early as 7:30 as you discovered 6 this morning. 7 JUDGE GUNNING: Well, as I said, it's 8 your choice. 9 MR. McILNAY: Thank you. 10 MS. O'MEARA: Thank you, Your Honor. 11 JUDGE GUNNING: Thank you. 12 (At 5:49 p.m. the hearing concluded.) 13 14 15 16 17 18 19 20 21 22 23 24 25 0225 1 STATE OF WISCONSIN ) ) SS 2 COUNTY OF MILWAUKEE ) 3 I, Christine A. Moran, Notary Public in and for the 4 State of Wisconsin, do hereby certify that I reported the 5 foregoing proceedings at the time and place specified in 6 the title page of said transcript and that the foregoing 7 is a full, true and correct transcription of my 8 stenographic notes thereof. 9 10 11 _________________________________ 12 CHRISTINE A. MORAN - Notary Public In and for the State of Wisconsin 13 My commission expires December 12, 2010. 14 Halma-Jilek Reporting, Inc. 15 (414) 271-4466 16 17 18 19 20 21 22 23 24 25