1. These cases were filed by the United States for failure to pay administrative penalties assessed by the Environmental Protection Agency pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sub-section 136 et seq.

2. On August 8, 1985, a consent judgment was filed in Civ. No. 85-229-Civ-T-15 in the amount of $3,750.00 against Kenic Pet Products, Inc. A $1000 payment was made, and the balance, plus interest, remains outstanding. On August 31, 1987, this court ++EP++ entered a default judgment against FPN, Inc., formerly d/b/a Kenic Pet Products, in the amount of $5,702.000, plus interest. Page 2

Thus, under the two cases, the United States is owed $8,452.00 plus interest.

3. Both parties, being desirous of terminating these proceedings without further litigation, have reached an agreement to settle both of these cases under the terms set forth below.

STIPULATIONS

IT IS HEREBY STIPULATED by and between the undersigned attorney on behalf of the Plaintiff United States of America and the undersigned representative of Defendant FPN, Inc., formerly d/b/a Kenic Pet Products, that Plaintiff's claims pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sub-section 136 et seq., shall be settled and compromised in accordance with the following terms:

1. Defendant will pay to the United States a total of $5000.00 in full settlement and satisfaction of any and all claims brought against Defendant pursuant to Civil Action No. 87-950-Civ-T-15C and Civil Action No. 85-229-Civ-T-15.

2. The settlement amount of $5000.00 shall be made in monthly installments of $1000.00 in accordance with the following schedule:

August 1, 1988 -- $1000.00 September 1, 1988 -- $1000.00 October 1, 1988 -- $1000.00 ++EP++ Page 3 November 1, 1988 -- $1000.00 December 1, 1988 -- $1000.00

3. The monthly payments shall be made by check payable to the "Treasurer of the United States," and shall be sent with a note referencing the case names and numbers to:

Mr. Warren A. Zimmerman Assistant United States Attorney Office of the United States Attorney for the Middle District of Florida 500 Zack Street, Suite 410 Tampa, Florida 33602 with a copy sent to: Ms. Cheryn Jones EPA Region IV 345 Courtland Street, NE Atlanta, GA 30365.

4. Upon receipt of the final $1000.00 installment, the United States shall move the court to dismiss both actions with prejudice.

5. In the event that Defendant FPN, Inc., formerly d/b/a Kenic Pet Products, defaults in its payments or otherwise fails to adhere to this stipulated payment schedule, the United States may consider this settlement rejected and shall be entitled to the full amount of $8,452.00 plus interest that is due and owing to the United States pursuant to judgments entered by the United States District Court for the Middle District of Florida. ++EP++

Page 4

For Plaintiff United States of America:

ROGER J. MARZULLA

Assistant Attorney General

Land and Natural Resources Division

U.S. Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

By:/s/ Leslie Allen

LESLIE ALLEN Environmental Enforcement Section Land and Natural Resources Division U.S. Department of Justice 10th Street & Pennsylvania Ave., N.W. Washington, D.C. 20530 date July 15, 1988 JOSEPH D. MAGRI United States Attorney Middle District of Florida By:/s/ WARREN A. ZIMMERMAN Assistant United States Attorney Robert Timberlake Bldg. 500 Zack Street, Room 410 Tampa, Florida 33602 Florida Bar No. 652040 (813) 225-7450 date 8/7/77 For Defendant FPN, Inc., formerly d/b/a Kenic Pet Products: /s/ Alfred P. Nicolosi date 8/3/88 ++EP++

KENIC PET PRODUCTS INC.

DOC 02 OF 03

PROPOSED FINAL CONSENT JUDGMENT (NEVER SIGNED BY COURT)

04-85-C007

FIFRA

OTHER

(BLANK)

19850327

FLD095563078

(NO FACILITY NAME)

ST PETERSBURG, FL

85-229-CIV-T-15

04

PROPOSED FINAL CONSENT JUDGMENT, U.S. V. KENIC PET PRODUCTS, INC.

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA

UNITED STATES OF AMERICA, Plaintiff, v. KENIC PET PRODUCTS, INC., Defendant.

Civil Action No. 85-229-CIV-T-15

FINAL CONSENT JUDGMENT

Plaintiff, the United States of America, filed the original complaint herein on February 11, 1985 seeking to recover an administrative penalty in the amount of $ 3,750 assessed by the U.S. Environmental Protection Agency pursuant to Section 14(a) (1) of the Federal Insecticide Fungicide and Rodenticide Act, ("the Act") 7 U.S.C. Section 136L(a) (1). Defendant, Kenic Pet Products Inc., in its answer having admitted that it has not paid the $ 3,750 civil penalty as agreed in the Consent Agreement and Final Order dated January 17, 1984 and is therefore, liable to the United States under Section 14(a) of the Act for said civil penalty. Plaintiff and Defendant, by their respective attorneys have consented, without trial, to the entry of this Consent Judgment in full settlement of all matters alleged in the Complaint. ++EP++

Page 2

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED AS follows:

1. This Court has jurisdiction over the parties consenting hereto and over the subject matter pursuant to Section 136n(c) of the Act and 28 U.S.C. Section 1345.

2. The Complaint states a claim upon which relief can be granted under Section 14(a) (1) of the Act, 7 U.S.C. Section 136L(a).

3. The parties agree that settlement of this matter without further litigation is in the public interest and that entry of this Consent Judgment is the most appropriate means of resolving these matters.

4. The provisions of this Consent Judgment shall apply to and be binding upon the Defendant, its officiers, directors, agents, servants, employees, successors, assigns and all persons in active concert or participation with it.

5. The Consent Judgment does not relieve Defendant of any obligation to comply with any federal, state or local law or regulation in any way related to the substance of this Consent Judgment. ++EP++

Page 3 SETTLEMENT PROVISION

Defendant shall pay Three Thousand Seven Hundred Fifty ($ 3,750.00) Dollars in full satisfaction of all civil claims of the Plaintiff for its failure to pay the civil penalty assessed by the Administrator of the U.S. Environmental Protection Agency as alleged in the Complaint. Such payment shall be made as follows:

1. $ 1,000 payment shall be made not later than ten(10) days after the date that this Consent Judgment is entered by the Court by a cashier's or certified check made payable to the "Treasurer of the United States of America" and delivered to Robert W. Merkle, U.S. Attorney, Middle District of Florida, 500 Zack Street, Room 410, Tampa, Florida 33602.

2. The balance, or $ 2,750, plus judgment interest at the rate provided by 28 U.S.C. Section 1961, computed daily to the date of payment, shall be due and payable one hundred and eighty (180) days after the date that this Consent Judgment is entered by the Court by a cashiers' or certified check made payable to the "Treasurer of the United States of America and delivered to the United States Attorney for the Middle District of Florida. ++EP++

Page 4

Judgment entered this day of , 1985.

UNITED STATES DISTRICT JUDGE

FOR THE DEFENDANT: /s/

ALFRED P. NICHOLOSI President Kenic Pet Products, Inc.

ATTEST:

SECRETARY Kenic Pet Products, Inc. /s/

ANDRA T. DREYFUS, P.A. Attorney for Defendant 311 South Missouri Avenue Clearwater, Florida 33515

FOR THE PLAINTIFF: F. HENRY HABICHT II Assistant Attorney General Land and Natural Resources Division U.S. Department of Justice Washington, D.C. 20530 COURTNEY M. PRICE Assistant Administrator Office of Enforcement and Compliance Monitoring U.S. Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 G. STEPHEN MANNING, Attorney Environmental Enforcement Section Land and Natural Resources Division U.S. Department of Justice 10th & Pennsylvania Avenue, N.W. Washington, D.C. 20530 ++EP++

KENIC PET PRODUCTS, INC.

DOC 01 OF 03

COMPLAINT

04-85-C007

FIFRA

OTHER

(BLANK)

19850211

FLD095563078

(NO FACILITY NAME)

ST. PETERSBURG, FL

85-229-CIV-T-15

04

COMPLAINT IN U.S. V. KENIC PET PRODUCTS, INC.

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA

UNITED STATES OF AMERICA, Plaintiff,v.

KENIC PET PRODUCTS, INC., Defendant.

Civil Action No. 85-229-CN-T-15

COMPLAINT

Plaintiff, United States of America, by and through the undersigned attorneys, at the request of the Administrator of the United States Environmental Protection Agency (EPA) alleges the following:

JURISDICTION AND PARTIES

1. This is a civil action to recover an administrative penalty assessed by the Environmental Protection Agency pursuant to Section 14(a) (1) of the Federal Insecticide, Fungicide and Rodenticide Act ("the Act"), 7 U.S.C. Section 1361(a) (1). As used herein, "1" is an italicized lower case L.

2. This court has jurisdiction over the subject matter of this action under 28 U.S.C. Section 1345 and 7 U.S.C. Section 136n(c).

3. Plaintiff is authorized by Section 14(a) (5) of the Act, 7 U.S.C. Section 1361(a) (5), to bring this action.

4. Defendant, Kenic Pet Products, Inc., is a Florida corporation authorized to do business in the State of Florida. At ++EP++ the present time, defendant conducts business located at 330 19th Street South, St. Petersburg, Florida 33712.

Page 2

Service may be made on defendant by serving the corporation's registered agent, Andrea Todd Dreyfus, P.A., 311 South Missouri Avenue, Clearwater, Florida 33516.

5. Defendant, Kenic Pet Products, Inc. operates an establishment wherein pesticides or active ingredients used in producing pesticides are produced for distribution or sale. Defendant, Kenic Pet Products, Inc. is registered with EPA as a producer of pesticides under EPA Establishment No. 37023-FL-01.

CLAIM FOR RELIEF

6. Section 14(a) of the Act, 7 U.S.C. Section 1361(a), provides, in pertinent part, as follows:

Any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who violates any provision of this subchapter may be assessed a civil penalty by the Administrator of not more than $ 5,000 for each offense . . . . No civil penalty shall be assessed unless the person charged shall have been given notice and opportunity for a hearing on such charge. . . . In case of inability to collect such civil penalty or failure of any person to pay . . ., the Administrator shall refer the matter to the Attorney General, who shall recover such amount by action in the appropriate United States district court.

7. On September 30, 1982, the U.S. Environmental Protection Agency issued an Administrative Complaint and Notice of Opportunity for Hearing pursuant to Section 14(a) (3), 7 U.S.C. Section 1361(a) (3).

8. On or about January 17, 1984, a Consent Agreement and Final Order between defendant and Thomas W. Devine, Director of the Air & Waste Management Division of the United States ++EP++ Environmental Protection Agency, Region IV, Atlanta, Georgia, was ratified by John A. Little, Deputy for the Regional Administrator of the U.S. Environmental Protection Agency, Region IV.

Page 3

The said Consent Agreement and Final Order requires defendant to pay a civil penalty of $3,750.00 to the United States of America. A copy of the Consent Agreement and Final Order is attached hereto as Exhibit 1 and incorporated herein by reference.

9. Despite numerous attempts to collect the agreed upon penalty of $3,750.00 the Defendant has not tendered payment as evidenced by the Affidavit of Sandra A. Beck, Regional Hearing Clerk of the U.S. Environmental Protection Agency, Region IV, a copy of which is attached hereto as Exhibit 2 and incorporated herein by reference. The penalty is currently due and owing to plaintiff.

WHEREFORE, plaintiff demands judgment against the defendant and in favor of the United States for the sum of $3,750.00 plus interest from the date of final judgment until paid in full, the costs of the instant civil action, and such other and further relief as the Court deems just and proper.

Respectfully submitted,

/s/

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

U.S. Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530 ++EP++

Page 4

ROBERT W. MERKLE

United States Attorney

Middle District of Florida

Robert Timberlake Bldg.

500 Zack Street, Room 410

Tampa, Florida 33602

By:/s/

Assistant United States Attorney

/s/ G Stephen Manning

G. STEPHEN MANNING

Attorney, Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

OF COUNSEL:

CHARLES ROOKS

Assistant Regional Counsel

U.S. Environmental Protection Agency

345 Courtland Street, N.E.

Atlanta, Georgia 30365 ++EP++

Page EXH-1-1 BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

IN RE

Kenic Pet Products, Inc., Respondent.

I.F. & R. No. IV-534-C

CONSENT AGREEMENT AND FINAL ORDER

This civil proceeding for the assessment of a penalty was initiated pursuant to Section 14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (P.L. 92-516; 7 U.S.C. 136 et seq.), hereinafter referred to as FIFRA. The Action was instituted by a Complaint and Notice of Opportunity for Hearing which was served by certified mail upon the Respondent on or about September 30, 1983.

WHEREAS, the Respondent admits the jurisdictional allegation contained in the Complaint; and

WHEREAS, Respondent neither admits nor denies the facts and charges alleged in the Complaint, which is incorporated herein by reference and specifically made a part hereof; and

WHEREAS, the Respondent hereby expressly waives his right to a hearing on this matter; and

WHEREAS, the Respondent consents to the payment of a civil penalty in the sum of $3,750.00; and to be paid in three monthly installments of $1,250.00. The first installment shall become due and payable 30 days after approval of this ++EP++ Consent Order by the Regional Administrator.

Page EXH-1-2

The balance shall be paid in two 30-day increments.

WHEREAS, Complaint and Respondent being desirous of terminating the proceeding without further hearing or litigation have each consented to the making and entry of this Consent Order.

NOW, THEREFORE, upon consent of the parties as aforesaid, it is hereby ORDERED and ADJUDGED:

I

That this Agency has jurisdiction of the subject matter of this Civil Proceeding.

II

That after considering the size of the business of the Respondent, the effect on its ability to continue in business and the gravity of the violation, I find that a civil penalty of $3,750.00 is appropriate.

III

That the Respondent shall, pay to the United States of America by cashier's check the amount of the said appropriate penalty in three (3) monthly installments. The first installment shall become due and payable 30 days after approval of this Consent Order. ++EP++

Page EXH-1-3 CONSENTED TO:

ENVIRONMENTAL PROTECTION AGENCY,

Complaint

BY:/s/

Director, Air and Waste Management

Division

DATE: 1/16/84

KENIC PET PRODUCTS, INC., Respondent

BY:/s/

DATE: 1/9/84

APPROVED:/s/ John A. Little, Deputy for

Regional Administrator

Environmental Protection Agency

Region IV

DATE: 1/17/84 ++EP++

Page EXH-2-1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

United States of America, Plaintiff, v. Kenic Pet Products, Defendant. Civil Action No.

AFFIDAVIT State of Georgia, Fulton County Sandra A. Beck, being duly sworn deposes and says: I

My name is Sandra A. Beck and I am employed as the Regional Hearing Clerk with the United States Environmental Protection Agency, Region IV, at 345 Courtland Street, N.E., Atlanta, Georgia 30365;

II

In my capacity as Regional Hearing Clerk and pursuant to 40 C.F.R. Section 22.31(b), I am the person designated to receive administrative civil penalties assessed under the Federal Insecticide, Fungicide, and Rodenticide Act in the form of a cashier's check or certified check. ++EP++

Page EXH-2-2 III

As of this date, I have not received any monies from Kenic Pet Products, Inc., for payment of the civil penalty agreed to in the ratified Consent Agreement and Final Order filed with me, pursuant to 40 C.F.R. Section 22.05, on January 17, 1984.

/s/ Sandra A. Beck

Regional Hearing Clerk

United States Environmental

Protection Agency - Region IV

Sworn and subscribed to me this 15th day of

January, 1985.

/s/

Notary Public ++EP++

CONTINENTAL CHEMIST CORP.

DOC 02 0F 02

Consent Decree

05-88-C049

FIFRA

CHEM

19880922

19880922

ILD0005116959

CHEMISTE

CHICAGO, IL

87-C-10214

05

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,

v.

CONTINENTAL CHEMISTE CORPORATION, and KENNETH KASS, Defendants.

Civil Action No. 87 C 10214

Honorable George M. Marovich

CONSENT DECREE

WHEREAS, Plaintiff, United States of America, on behalf of the United States Environmental Protection Agency ("U.S. EPA") filed the Complaint in this action on November 30, 1987, against Kenneth Kass and Continental Chemiste Corporation ("Chemiste"), alleging violations of Sections 12(a) (1) (A), 12(a) (1) (E), 12(a) (2) (B) and 12(a) (2) (K) of the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"),

WHEREAS, the Parties agree that it is in the best interest of both parties and the public that this Consent Decree be entered;

NOW, THEREFORE, before the taking of any testimony upon the pleadings, without adjudication of any issue of fact or law, and upon consent agreement of the parties to this Decree,

IT IS HEREBY ORDERED AND DECREED as follows: ++EP++

Page 2 I. JURISDICTION; VENUE

The parties stipulate and the Court finds that:

1. This Court has jurisdiction over the subject matter herein under Section 16(c) of FIFRA, 7 U.S.C. Section 136n(c), and under 28 U.S.C. Sub-Section 1331 and 1345.

2. The Court has jurisdiction over the Defendants.

3. Venue properly lies in the United States District Court for the Northern District of Illinois because Defendant Chemiste's principal place of business is located in this District, Defendant Kass has a principal place of residence in this District, and the violations are alleged to have occurred in this District.

II. APPLICABILITY

4. The provisions of this Decree shall apply to and be binding upon the Defendants, their partners, officers, directors, agents, servants, employees, successors, and assigns.

III. FINDINGS OF FACT

For the purposes of this action only the parties stipulate and the Court finds:

5. Defendant Kass is past president of Defendant Chemiste. At the time of entry of this Decree, he is an employee of ++EP++ Defendant Chemiste.

Page 3

His residence is 21 East North Avenue, Lake Forest, Ilinois, 60045.

6. Defendant Chemiste is engaged in the business of producing and selling certain pesticides, with a principal place of business at 2250-2256 W. Ogden Avenue, Chicago, Illinois 60612 ("Chemiste facility").

7. The Defendants are engaged in the production, packaging, distribution and sale of pesticides at the Chemiste facility.

8. On September 30, 1983, a Notice of Intent to cancel pesticide products containing lindane was published in the Federal Register. 48 Fed. Reg. 48512. Said Notice stated the Administrator's intent to cancel the registrations of lindane smoke fumigation devices for indoor use.

9. Defendants' products Smo-Cloud (EPA Reg. No. 495-6-Cancelled), Moth-Cloud (EPA Reg. No. 495-8-Cancelled) and Bug-Tab (EPA Reg. No. 495-7) fall under the purview of said Notice.

10. Defendant Chemiste requested an adjudicatory hearing to contest the cancellation of Smo-Cloud.

11. On November 29, 1984, Defendant Chemiste agreed to withdraw its request for hearing in FIFRA Docket No. 524, et al., following amendment of the Notice of Cancellation to provide that cancellation of registration for Smo-Cloud will be effective May 31, 1986.

12. On February 8, 1985, an amendment to the September 30, 1983, Notice ("Cancellation Order") changed the effective date for the cancellation of Smo-Cloud to May 31, 1986. 50 Fed. Reg. ++EP++ 5424-26.

Page 4

The Cancellation Order also changed the labeling requirements on the Defendants' products.

IV. COMPLIANCE PROGRAM

13. Defendants shall immediately comply and thereafter comply with FIFRA and the Cancellation Order.

14. Within 60 days from the date of entry of this Decree, Defendant Chemiste shall notify, by means of U.S. Mail, all of Chemiste's distributors and retailers which appear as shipping receivers and/or as purchasers of more than 2,000 ounces of Smo-Cloud and/or Bug Tab on Chemiste's invoices or packaging documents for the delivery of Smo-Cloud or Bug-Tab after May 31, 1986, ("receivers"). All receivers to be notified are listed in Attachment A to this Consent Decree. Such notice shall provide that the receivers may no longer sell Smo-Cloud and Moth-Cloud and that all sales of these products should have ceased as of February 7, 1987. These receivers are required to dispose of their stocks of these products in accordance with the Resource Conservation and Recovery Act ("RCRA") or return these stocks to Chemiste. This notice shall also provide that Bug-Tab shall not be sold unless the label is marked "not for indoor use."

A copy of this communication and a list of all addresses shall be submitted to EPA within 60 days from the entry of this Decree. ++EP++

Page 5

P

15. Defendant Continental Chemiste Corporation shall accept all stocks of Smo-Cloud and Bug Tab returned from the receivers notified pursuant to paragraph 14.

16. Within 90 days after the date of entry of this Decree, and quarterly thereafter until the termination of this Decree, Defendant Chemiste shall notify EPA which receivers have returned stocks of Smo-Cloud, Moth-Cloud and/or Bug-Tab to Chemiste and the quantity returned. Defendant Chemiste shall include in these notices to EPA an accurate total of all stocks of these products added to Defendant Chemiste's inventory and held at the Chemiste facility.

17. Within 12 months after the date of entry of this Decree, Defendant Chemiste shall dispose of in accordance with the Resource Conservation and Recovery Act ("RCRA") 42 U.S.C. 6901 et seq., reformulate into a registered product or export all stocks of Smo-Cloud and Moth-Cloud within its possession, including all returned products. Defendant Chemiste shall also dispose, reformulate and/or export every 6 months all products received after the 12 month period in accordance with this paragraph.

18. Defendant Chemiste shall provide the personal guarantee of its president, Mr. Jacob H. Martin, to ensure Defendant Chemiste's performance as set forth in paragraph 17 of this Decree. This guarantee shall provide that in the event Defendant Chemiste fails to perform as set forth in paragraph 17, Mr. Jacob H. Martin shall pay to EPA the full cost of the proper disposal, ++EP++ in accordance with RCRA, of all of Defendant Chemiste's stocks of Smo-Cloud and Moth-Cloud.

Page 6

These costs include, but are not limited to, transportation, storage, disposal and documentation costs. Payment of these costs shall in no manner reduce or change any obligations for the payment of stipulated penalties for which Continental Chemiste may be liable pursuant to paragraph 22 of this Decree.

19. Defendants shall not sell, distribute, hold for sale, offer for sale, ship, deliver for shipment or offer to deliver to any person any pesticide which is not registered under Section 3 of FIFRA, 7 U.S.C. Section 136a including Smo-Cloud (EPA Reg. No. 495-6-Cancelled) and Moth-Cloud (EPA Reg. No. 495-8-Cancelled)

20. Defendants shall not violate the cancellation of a registration of any pesticide under Section 6 of FIFRA, 7 U.S.C. Section 136d.

21. Defendants shall not sell, distribute, hold for sale, offer for sale, ship, deliver for shipment or offer to deliver to any person any pesticide which is misbranded, including Bug-Tab (EPA Reg. No. 495-7) which must be labeled "not for indoor use."

V. STIPULATED PENALTIES

22. (a) Defendant Chemiste stipulates that it shall be liable for payment of a penalty of $500.00 for each day the deadlines established in this Decree are not met for the first seven days and $1000.00 per day thereafter. In the event that Defendant Kass becomes an officer, director or controlling ++EP++

shareholder of Continental Chemiste Corporation and conducts the day to day operations of that corporation during the effective period of this Decree, Defendants shall be jointly and severally liable for the payment of penalties as specified in this paragraph.

Page 7

(b) Stipulated penalties are payable upon demand by cashier's check to "Treasurer, United States of America" and shall be mailed to:

Branch Secretary

Air, Water, Toxics & General Law Branch (5CA-16)

Office of Regional Counsel

U.S. Environmental Protection Agency

Region V

230 South Dearborn Street

Chicago, Illinois 60604

On any amount overdue, interest shall accrue at the rate established by the Secretary of the Treasury pursuant to 31 U.S.C. Section 3717. In addition, after the first thirty (30) days that an amount is overdue, a late payment handling charge of Twenty Dollars ($20.00) is owed and an additional charge of Ten Dollars ($10.00) is owed for every subsequent thirty (30) day period that any monies are overdue. For amounts overdue past 90 days, a six per cent penalty shall be applied.

Defendant Chemiste is liable for any such penalties, interest or charges. In the event that Defendant Kass becomes an officer, director or controlling shareholder of Continental Chemiste and conducts the day to day operations of that corporation during the effective period of this Decree, ++EP++

Defendants shall be jointly and severally liable for any such penalties, interest or charges.

Page 8

(c) Stipulated penalties are not the exclusive remedy of Plaintiff for Defendants' violations of this Decree, and Plaintiff reserves the right to use any other remedies to which it is entitled including, but not limited to, injunctive and additional monetary relief.

VI. FORCE MAJEURE

23. (a) Defendants obligations under this Decree shall be performed within the time limits set forth in the Decree unless performance is prevented or delayed by a Force Majeure event. For purposes of this Consent Decree, "Force Majeure" is defined as any event arising from causes beyond Defendants' control which delays or prevents the performance of any obligation under this Decree, including but not limited to Acts of God or War, and judicial or legislative actions which prevent compliance with the provisions of this Decree. "Force Majeure" shall not include increased costs of performance of any activity required by this Decree, the financial inability of Defendants to perform their obligations under this Decree or the failure to apply for any required permits or approvals or to provide all information required therefore in a timely manner.

(b) Any party to this Decree having difficulty meeting the terms of this Decree due to a Force Majeure event shall notify the other parties promptly by telephone of any change in circumstances giving rise to the suspension of performance, or ++EP++

the non-performance, of any obligation under this Decree. In addition, within 14 days of the occurrence of circumstances causing such difficulty, the party experiencing the difficulty shall provide a written statement to EPA of the reason(s) therefor, the anticipated duration of the delay, the measures taken and to be taken to prevent or minimize the delay, and the timetable for the implementation of such measures.

Page 9

Failure to give notice shall constitute a waiver of any claims of Force Majeure by Defendants.

(c) If EPA agrees that a delay is or was attributable to a Force Majeure event, EPA shall promptly notify Defendants in writing and specify the additional time that is allowed to complete the specific phase of work or any succeeding phase of work affected by such delay.

VII. GENERAL PROVISIONS

24. In the event that Defendant Kass becomes an officer, director or controlling shareholder of Defendant Continental Chemiste Corporation, and conducts the day to day operations of the corporation during the effective period of this Decree, Defendant Kass, as well as Defendant Chemiste, shall be subject to the provisions in paragraphs 14, 15, 16 and 17 of this Decree.

25. Notices, etc. All plans, notifications and other submittals required by this Decree to be submitted to U.S. EPA shall be addressed to:

Chief, Pesticides & Toxics Substances Branch

Environmental Services Division

U.S. Environmental Protection Agency

230 South Dearborn Street ++EP++

Page 10

Chicago, Illinois 60604

A copy of all such submittals shall also be sent to:

Mr. Larry Werries, Director

Illinois Department of Agriculture

State Fair Grounds

Springfield, Illinois 62794-9281

The cover letter to each submittal shall state that it is being submitted pursuant to this Decree and shall refer to particular paragraphs of this Decree.

26. Modification. Any modification of this Decree must be in writing and approved by the Court. Any such written modification must be executed by both Defendants and by the United States, the latter by the Assistant Attorney General, Land and Natural Resources Division and by the Assistant Administrator of the Office of Enforcement and Compliance Monitoring.

27. Other Laws. This Decree in no way affects Defendants' responsibility to comply with any other state, federal or local regulations or any Order of this Court. This Decree does not limit the authority of the United States to initiate actions under Section 13 of the Act, 7 U.S.C. Section 136k.

28. Public Documents. All information and documents submitted by Defendants pursuant to the Decree shall be subject to public inspection.

29. Entry. Defendants consent to entry by representatives of the United States and U.S. EPA at the Chemiste Facility to conduct inspections or to otherwise ensure their compliance with this Decree, the Act and the Amended Notice. ++EP++

Page 11

30. Termination. This Decree shall terminate three years after its entry, after Defendants move for such termination and only if they have fully complied with all provisions of this Decree.

31. Retention of Jurisdiction. Until termination of this Decree, the Court shall retain jurisdiction to modify and enforce the terms and conditions of this Decree and to resolve any disputes arising hereunder as may be necessary or appropriate for the construction or execution of this Decree.

32. Severability. Should any provision of this Decree be declared by a court of competent jurisdiction to be inconsistent with State or Federal law and therefore unenforceable, the remaining provisions shall remain in effect.

For Plaintiff - UNITED STATES OF AMERICA:

By:/s/

ROGER J. MARZULLA

Assistant Attorney General

Land and Natural Resources Division

United States Department of Justice

Washington, D.C. 20530

Dated: 9/8/88

By:/s/ Kurt Weissmuller

KURT WEISSMULLER, Attorney

Environmental Enforcement Section

Land and Natural Resources Division

United States Department of Justice

P.O. Box 7611

Benjamin Franklin Station

Washington, D.C. 20044-7611

Dated: 8/26/88

ANTON R. VALUKAS

United States Attorney

Northern District of Illinois ++EP++

Page 12

By:/s/Thomas L. Adams J.

THOMAS L. ADAMS, JR.

Assistant Administrator for Enforcement and Compliance Monitoring

U.S. Environmental Protection Agency

Washington, D.C. 20460

Dated:8/11/88

BY:/s/

VALDAS V. ADAMKUS

U.S. Administrator

U.S. Environmental Protection Agency

Region V

Chicago, Illinois 60604

Dated: 7/18/88

By:/s/

SCOTT R. DISMUKES

Assistant Regional Counsel

U.S. Environmental Protection Agency

Region V

Chicago, Illinois 60604

Dated: 6/13/88

For Defendant - KENNETH KASS

By:/s/

KENNETH KASS

Dated: May 3, 1988 ++EP++

Page 13

For Defendant - CONTINENTAL CHEMISTE CORPORATION:

By:/s/

JACOB H. MARTIN

President

Dated: May 3, 1988

Entered this 22nd day of September, 1988

/s/

GEORGE M. MAROVICH UNITED STATES

DISTRICT JUDGE ++EP++

Page ATT-A-1

* Attachment A

Sav-On Dist. Center

300 E. Cerritos Ave.

Anaheim, California 98205

Hank Hatfield Hdwe

1104 4th Street

Sioux City, Iowa 51101

Atlas South

900 E 120th

Chicago, Illinois 60628

B E Atlas

(ILLEGIBLE)4300 North Kilpatrick

Chicago, Illonois 60641

EC Lockwood

10100 Pacific Ave.

Franklin Park, Illinois 60131

Hardware Wholesalers, Inc.

Progress Drive

Dixon, Illinois 61021

Lebovitz Wholesale

5007 S. Lawndale

Chicago, Illinois 60632

Northshore Distributing

405 Academy Drive

Northbrook, Illinois 60062

Home Hardware

6042 Central Avenue

Portage, Indiana 46368

Stay Ready

2944 W. 15th Ave.

Gary, Indiana 46404 Bluestem Farm

& Ranch

2611 West Hwy 50

Emporia, Kansas 66801

Dick Roberts Supply

1011 E. 10th

Hutchinson, Kansas 67501 ++EP++

Page ATT-A-2

Central Hardware

1111 Boulder Industrial Dr.

Bridgeton,, Missouri 63044 Berks

Exterminating

2671 Youngstown Rd SE

Warren, Ohio 44484

General Pest Control

4224 Riverdale RFD

Ogden, Utah 84405

A and B Pro Hdwe

6306 22nd Avenue

Kenosha, Wisconsin 53140

Crown Hdwe

2016 N 3rd Street

Milwaukee, Wisconsin 53212

Hardlines Marketing

4039 W. Green Tree Road

Milwaukee, Wisconsin 53223

Wal-Mart Stores, Inc.

P.O. Box 116

Bentonville, Arkansas 72716

Ace Hardware

2200 Kensington Court

Oakbrook, Illinois 60521

Dominicks Finer Foods

5555 Northwest Avenue

North Lake, Illinois 60164

Cotter and Company

P.O. Box 6868

Chicago, Illinois 60680

House Hasson Hardware

2570 Devon Avenue

Des Plaines, Illinois 60018

Fedrick Trading

2570 Devon

Des Plaines, Illonois 60018

Wyeth Co

2570 Devon

Des Plaines, Illinois 60018 ++EP++

Page ATT-A-3

Whites Hdwe

5523 South Halsted

Chicago, Illinois 60621

Osco Drug

3030 N. Cullerton

Franklin Park, Illinois 60131

Jaydon Inc.

P.O. Box 1399

Rock Island, Illinois 61201

Kruse Hardware

2570 Devon

Des Plaines, Illinois 60018

Nelson-Roanoke Corporation

2570 Devon

Des Plaines, Illinois 60018

Hardware Wholesalers, Inc.

P.O. Box 868

Ft. Wayne, Indiana 46801

Coast to Coast

P.O. Box 80

Minneapolis, Minnesota 55440

United Hdwe/Hdwe Hank

P.O. Box 410

Minneapolis, Minnesota 55440

Witte Hardware

4600 Goodfellow Blvd.

St. Louis, Missouri 63120

Wheatbelt, Inc.

P.O. Box 20287

Kansas City, Missouri 64195

Wright & Wilhelmy

513 S. 10th

Omaha, Nebraska 68102

Bostwick Braun

P.O. Box 930

Toledo, Ohio 43692

American Hdwe Supply Company

P.O. Box 308 Dept 34197

Butler, Pennsylvania 16001 ++EP++

CONTINENTAL CHEMIST CORP.

DOC 01 OF 02

Complaint

05-88-C049

FIFRA

CHEM

19880922

19871130

ILD005116959

CHEMISTE

CHICAGO, IL

87-C-10214

05

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,

v.

CONTINENTAL CHEMISTE CORPORATION AND KENNETH KASS, Defendants.

Civil Action No. 87C10214

COMPLAINT

Plaintiff, United States of America, by authority of the Attorney General and at the request of the Administrator of the U.S. Environmental Protection Agency ("U.S. EPA"), alleges as follows:

INTRODUCTION

1. This is a civil action brought pursuant to Section 16 of the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA" or "the Act"), 7 U.S.C. Section 136 et seq., for violations of Section 12 of the Act, 7 U.S.C. Section 136j, by Defendants Continental Chemiste Corporation and Kenneth Kass.

2. Defendants violated Section 12(a)(1)(A) of FIFRA, 7 U.S.C. Section 136j(a)(1)(A), by distributing, selling, offering for sale, holding for sale, shiping, delivering for shipment, and delivering or offering to deliver, pesticides which are not registered under Section 136a of FIFRA. ++EP++

Page 2

3. Defendants violated Section 12(a)(1)(E) of FIFRA, 7 U.S.C. Section 136j(a)(1)(E), by distributing, selling, offering for sale, holding for sale, shipping, delivering for shipment, and delivering or offering to deliver pesticides which were misbranded.

4. Defendants violated Section 12(a)(2)(B) of FIFRA, 7 U.S.C. Section 136j(a)(2)(B), by refusing to permit the inspection of their records and establishment by U.S. EPA officials pursuant to Sections 136(f) and 136(g) of FIFRA, 7 U.S.C. Section 136(f) and (g).

5. Defendants violated Section 12(a)(2)(K) of FIFRA, 7 U.S.C. Section 136j(a)(2)(K), by violating the cancellation of the registrations of pesticides produced by them.

JURISDICTION AND VENUE

6. This Court has jurisdiction over the subject matter of this action pursuant to Section 16(c) of FIFRA, 7 U.S.C. Section 136n(c), and 28 U.S.C. Sub-Section 1331 and 1345.

7. Venue is proper in this district pursuant to 28 U.S.C. Section 1391, as Defendants reside in this district and conduct business here.

DEFENDANTS

8. Defendant Continental Chemiste Corporation ("Chemiste") is a corporation organized under the laws of the State of Illinois, licensed to do business in the State of Illinois and ++EP++

actually conducting business at 2250 West Ogden Avenue, Chicago, Illinois.

Page 3

9. Defendant Kenneth Kass is a person residing in the State of Illinois who serves as president of Continental Chemiste Corporation.

FACTUAL STATEMENT

10. The Defendants engaged in the production, packaging, distribution and sale of pesticides at their facility located at 2250 West Ogden Avenue, Chicago, Illinois.

11. On September 30, 1983, a Notice of Intent to Cancel pesticide products containing lindane was published in the Federal Register (48 Fed. Reg. 48512). The Notice stated the Administrator of U.S. EPA's intent to cancel the registrations of lindane smoke fumigation devices for indoor use. Lindane is listed as hazardous waste U.129 in 40 C.F.R. Section 261.33(f).

12. Defendants' products Smo-Cloud (EPA Reg. No. 495-6-Cancelled), Moth-Cloud (EPA Reg. No. 495-8-Cancelled) and Bug Tab (EPA Reg. No. 495-7) fall under the purview of the September 30, 1983 Notice.

13. Defendant Chemiste requested an adjudicatory hearing to contest the cancellation of Smo-Cloud.

14. On November 29, 1984 Defendant Chemiste agreed to withdraw its request for a hearing in FIFRA Docket No. 524, et al., following an agreement by U.S. EPA to provide that the cancellation of registration for Smo-Cloud will be postponed until May 31, 1986, and that Defendants could continue to ++EP++

manufacture, distribute and sell Bug Tab if they would label the product for outdoor use only.

Page 4

15. On February 8, 1985, an amendment to the September 30, 1983, Notice changed the effective date for the cancellation of Smo-Cloud to May 31, 1986, after which Defendant was prohibited from manufacturing, distributing or selling this product, and gave independent distributors and retailers of Smo-Cloud until November 30, 1986, to phase out their existing stocks. Smo-Cloud labels were required to read "not for sale after November 30, 1986." 50 Fed. Reg. 5424-26.

16. On December 3, 1986, and again on February 11, 1987, representatives of U.S. EPA sought entry to Defendants' premises to inspect Defendants' Records pursuant to Sections 8 and 9 of FIFRA, 7 U.S.C. Section 136f and 136g. On both occasions Defendants refused to allow entry into the premises.

17. On February 13, 1987, during an inspection pursuant to a warrant of Defendants' establishment at 2259 West Ogden Avenue, Chicago, Illinois, U.S. EPA obtained records showing Defendant made over 600 sales of the cancelled and unregistered Smo-Cloud to various stores and outlets, or was holding Smo-Cloud for sale to stores and outlets, after May 31, 1986, the date Smo-Cloud's cancellation became effective.

18. On July 9, 1986, a representative of the Illinois Department of Agriculture inspected Continental Chemiste's premises and requested samples of each of the three pesticides ++EP++ that were in a packaged, labeled and released for shipment condition.

Page 5

19. On December 12, 1986, a representative of the Illinois Department of Agriculture inspected a distributor of Continental Chemiste, Northshore Distributing, and on December 16, 1986, the Department inspected another distributor of Continental Chemiste, Ace Hardware.

20. These Illinois Department of Agriculture inspections revealed that Defendants products were misbranded by not displaying on the labels "not for sale after November 30, 1986" on Smo-Cloud (the date retailers were to stop selling Smo-Cloud) and, "not for indoor use" on Bug-Tab.

FIRST CLAIM FOR RELIEF

21. All allegations set forth in paragraphs 1 through 20 are hereby incorporated in full.

22. Section 12(a)(1)(A) of FIFRA, 7 U.S.C. Section 136j(a)(1)(A), provides, in a pertinent part, that it shall be unlawful for any person in any State to distribute, sell, offer for sale, hold for sale, ship, deliver for shipment or receive and (having so received) deliver or offer to deliver, to any person any pesticide which is not registered under Section 3 of FIFRA, 7 U.S.C. Section 136a.

23. The cancellation of Defendants' Smo-Cloud product became effective on May 31, 1986. ++EP++

Page 6

24. Defendants' acts of selling the unregistered Smo-Cloud after May 31, 1986 constitute continuing violations of Section 12(a)(1)(A) of FIFRA, 7 U.S.C. Section 136j(a)(1)(A).

25. Unless this Court enjoins Defendants from selling its unregistered product Smo-Cloud, Defendants will continue to violate Section 12(a)(1)(A) of FIFRA, 7 U.S.C. Section 136j(a)(1)(A).

26. Unless this Court orders Defendants to notify all consignees, purchasers and distributors of Smo-Cloud of the requirement for disposal of their existing stock of Smo-Cloud and Moth-Cloud pursuant to EPA's Amended Notice of February 8, 1985, Defendants' products will continue to be sold in violation of the EPA Order.

SECOND CLAIM FOR RELIEF

27. All allegations set forth in paragraphs 1 through 20 are hereby incorporated in full.

28. Section 12(a)(2)(K) of FIFRA, 7 U.S.C. Section 136j(a)(2)(K), provides, in a pertinent part, that it shall be unlawful for any persons to violate any cancellation of registration of a pesticide under Section 6 of FIFRA, 7 U.S.C. Section 136d.

29. Defendants' acts of selling the cancelled Smo-Cloud after May 31, 1986, in violation of the February 8, 1985, cancellation order constitute continuing violations of Section 12(a)(2)(K) of FIFRA, 7 U.S.C. Section 136j(a)(2)(K).

30. Unless this Court enjoins Defendants from selling its unregistered product Smo-loud, Defendants will continue to violate Section 12(a)(2)(K) of FIFRA, 7 U.S.C. Section 136j(a)(2)(K). ++EP++

Page 7 THIRD CLAIM FOR RELIEF

31. All allegations set forth in paragraphs 1 through 20 are hereby incorporated in full.

32. Section 8(b) of FIFRA, 7 U.S.C. Section 136f(b), provides, in a pertinent part, that any producer, distributor or any other person who sells or offers for sale any pesticide subject to this Act, shall, upon request of any officer or employee of U.S. EPA furnish, or permit such person at all reasonable times to have access to and copy all records showing the delivery, movement, or holding of such pesticide, including the quantity, the date of shipment and receipt, and the name of the consignor and consignee.

33. Section 9(a) of FIFRA, 7 U.S.C. Section 136g(a), provides, in a pertinent part, that officials of U.S. EPA may "enter, at reasonable times, any establishment or other place where pesticides or other devises are held for distribution or sale."

34. Section 12(a)(2)(B) of FIFRA, 7 U.S.C. Section 136j(a)(2)(B), provides that it shall be unlawful for any person to refuse to allow the inspection of any records pursuant to Sections 8 and 9 of FIFRA, 7 U.S.C. Section 136f and 136g.

35. On Wednesday, December 3, 1986, the Defendants refused to allow entry onto Defendants' premises by U.S. EPA in order to inspect Defendants' records pertaining to the sale and distribution of Smo-Cloud. ++EP++

Page 8

36. On Wednesday, February 11, 1987, the Defendants refused to allow entry onto Defendants' premises by U.S. EPA in order to inspect Defendants' records pertaining to the sale and distribution of Smo-Cloud.

37. Defendants' refusal to allow the inspection of records showing the delivery, movement or holding of Smo-Cloud constituted a violation of Section 12(a)(2)(B) of FIFRA, 7 U.S.C. Section 136j(a)(2)(B).

38. Unless this Court enjoins Defendants from refusing to allow future inspection of Defendants records pursuant to Section 8(b) of FIFRA, 7 U.S.C. Section 136f(b), Defendants will continue to violate Section 12(a)(2)(B) of FIFRA, 7 U.S.C. 136j(a)(2)(B).

FOURTH CLAIM FOR RELIEF

39. All allegations set forth in paragraphs 1 through 20 are hereby incorporated in full.

40. Section 12(a)(1)(E) of FIFRA, 7 U.S.C. Section 136j(a)(1)(E), provides, in a pertinent part, that it shall be unlawful for any person to distribute, sell, offer for sale, hold for sale, ship, deliver for shipment or receive and deliver or offer for delivery any pesticide which is misbranded.

41. During the Illinois Department of Agriculture's July 9, 1986, inspection, Chemiste provided Sample No. 4483, Smo-Cloud Bug Killer. Contrary to the Amended Notice, the sample's label failed to state "not to be sold after November 30, 1986." The label stated that the pesticide was for use in "homes, ++EP++

apartments, food stores, bakeries, restaurants, groceries, basements, factories."

Page 9

42. Also during the Illinois Department of Agriculture's July 9, 1986 inspection, Chemiste provided Sample No. 4484, Bug-Tab Indoor-Outdoor Bug Killer. Contrary to the Amended Notice, this sample's label failed to state "not for indoor use," but instead stated it was for indoor use.

43. The Illinois Department of Agriculture's request was a request for samples of each of the three pesticides that were packaged, labeled and released for shipment.

44. Defendants' holding for sale and delivery of these products with misbranded labels constitute continuing violations of Section 12(a)(1)(E) of FIFRA, 7 U.S.C. Section 136j(a)(1)(E).

45. Unless this court enjoins Defendants from continuing to misbrand the labels of their products in violation of U.S. EPA's Amended Notice of February 8, 1985, Defendants will continue to violate Section 12(a)(1)(E) of FIFRA, 7 U.S.C. Section 136j(a)(1)(E).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, United States of America, prays:

1. That this Court enjoin permanently Defendants Continental Chemiste Corporation and Kenneth Kass, their officers, agents, servants, employees and all persons acting in concert or participation with them, from any and all further violations of FIFRA; ++EP++

Page 10

2. That this Court order Defendants to notify all consignees, purchasers and distributors of the requirement for disposal of their existing stock of Smo-Cloud and Moth-Cloud pursuant to U.S. EPA's Amended Notice of February 8, 1985;

3. That this Court order Defendants to comply with all applicable laws governing the disposal of hazardous waste lindane, including the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.;

4. That Plaintiff be awarded its costs and disbursements in this action; and

5. That this Court grant such other relief as it deems appropriate.

Respectfully submitted,

/s/ Roger J. Marzulla

ROGER J. MARZULLA

Acting Assistant Attorney General

Land and Natural Resources Division

/s/ Kurt Weissmuller

KURT WEISSMULLER, Attorney

Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

P.O. Box 7611

Benjamin Franklin Station

Washington, D.C. 20044

(202) 633-2436

ANTON R. VALUKAS

United States Attorney

Northern District of Illinois ++EP++

Page 11

By:/s/ William T. Clabault

WILLIAM T. CLABAULT

Assistant United States Attorney

Everett McKinley Dirksen Building

Room 1500 S

219 South Dearborn Street

Chicago, Illinois 60604

OF COUNSEL:

SCOTT DISMUKES

Office of Regional Counsel

U.S. Environmental Protection Agency

Region V

230 South Dearborn Street

Chicago, Illinois 60604 ++EP++

CHEMI-SOL CHEMICAL & SALES

DOC 02 OF 02

JUDGMENT

07-88-C014

FIFRA

CHEM

19881031

19

KSD063571996

CHEMI-SOL CHEMICAL & SALES

HUTCHINSON, KS

88-1580T

07

JUDGMENT IN U.S. V. CHEMI-SOL CHEMICAL & SALES CO.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, Plaintiff,

vs.

CHEMI-SOL CHEMICAL & SALES CO., Defendant.

Civil Action

No. 88-1508T

J U D G M E N T

Now on this 31st day of October, 1988, this matter comes before the Court on the motion of the United States for entry of judgment by default against the defendant Chemi-Sol Chemical & Sales Co.

The Court finds that the Complaint of the United States was filed on August 25, 1988 and the defendant has been duly served with process on September 30, 1988, but has failed to answer or otherwise plead and more than twenty days has elapsed since such service was made, and

IT IS THEREFORE THE ORDER OF THE COURT that judgment is hereby entered in favor of the United States and against the defendant Chemi-Sol Chemical & Sales Co., in the sum of $3,200.00.

Judge

APPROVED:

BENJAMIN L. BURGESS, JR.

United States Attorney

By:

Stephen K. Lester

Assistant U.S. Attorney

401 N. Market

Wichita, Kansas 67202

(316) 269-6481

(K.S.Ct. 05980)

ATTEST: A true copy

RALPH L. DeLOACH, Clerk

By Allison Jones

Deputy ++EP++

CHEMI-SOL CHEMICAL & SALES CO.

DOC 01 OF 02

COMPLAINT AND NOTICE OF OPPORTUNITY FOR HEARING

07-88-C014

FIFRA

CHEM

19881031

19880919

KSD063571996

CHEMI-SOL CHEMICAL & SALES

HUTCHINSON, KS

88-1580T

07

COMPLAINT AND NOTICE OF OPPORTUNITY FOR HEARING IN U.S. V. CHEMI-SOL CHEMICAL & SALES CO.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION VII 726 MINNESOTA AVENUE KANSAS CITY, KANSAS 66101 BEFORE THE ADMINISTRATOR

IN THE MATTER OF

Chemi-Sol Chemical & Sales Company

2412 East Fourth Street

Hutchinson, Kansas 67501

Respondent

I. F. & R. Docket No. VII-737C-86P

COMPLAINT AND NOTICE OF OPPORTUNITY FOR HEARING

COMPLAINT Section I Jurisdiction

1. This is an administrative action for the assessment of civil penalties instituted pursuant to Section 14 of the Federal Insecticide, Fungicide and Rodenticide Act, as amended, 7 U.S.C. Section 1361 (1976 and Supp III 1979), hereinafter FIFRA.

2. This Complaint serves as notice that the United States Environmental Protection Agency (hereinafter EPA) has reason to believe that Chemi-Sol Chemical & Sales Company has violated Section 12 of FIFRA, 7 U.S.C. Section 136j.

Section II Parties

3. The Complainant, by delegation from the Administrator of the U.S. EPA, is the Regional Administrator, EPA, Region VII.

4. The Respondent is Chemi-Sol Chemical & Sales Company, Hutchinson, Kansas, which is, and at all times referred to in this Complaint was, a corporation incorporated under the laws of the State of Kansas.

Section III Violations

5. The Complainant hereby states and alleges that Respondent has violated FIFRA as follows: ++EP++

6. Respondent, a pesticide producer, made application on November 13, 1973, to register its facility at 2412 East Fourth Street, Hutchinson, Kansas, as a pesticide-producing establishment. On December 18, 1973, EPA assigned the facility the establishment number EPA Est 02618-KS-01.

7. Section 7 of FIFRA, 7 U.S.C. Section 136e, requires any producer operating a registered pesticide-producing establishment to inform EPA of the types and amounts of pesticides which he is currently producing, which he has produced during the past year, and which he has sold or distributed during the past year.

8. EPA regulations codified at 40 C.F.R. Section 167.5(c), promulgated under the authority of Sub-Section 7 and 25 of FIFRA, 7 U.S.C. Sub-Section 136e and 136w, require that the pesticide report be submitted to the Agency annually on or before February 1.

9. In November of 1985, EPA's Washington D.C., office sent by certified mail the annual pesticide report to Respondent, with instructions that the form was to be completed and the original and first copy returned to EPA Region VII on or before February 1, 1986. The annual report was received by Respondent on December 6, 1985.

10. When Respondent failed to submit the report, EPA issued a Notice of Warning letter on May 22, 1986, advising Respondent to file the annual report with this regional office within 20 days of the date of the Notice of Warning or be subject to civil penalty provisions of FIFRA and establishment registration termination. The Notice of Warning was sent by certified mail and was received by Respondent on May 30, 1986. Respondent has not submitted the required report.

11. Respondent failed to comply with FIFRA in that the annual pesticide report form was not submitted to EPA as required by Section 7 of FIFRA, 7 U.S.C. Section 136e, and 40 C.F.R. Section 167.5(c).

12. It is a violation of Section 12(a)(2)(L) of FIFRA, 7 U.S.C. Section136j(a)(2)(L), for a producer to violate any of the provisions of Section 7 of FIFRA, 7 U.S.C. Section 136e.

13. Pursuant to Section 14 of FIFRA, 7 U.S.C. Section 1361, and based on the facts stated in paragraphs 6 through 12 above, it is proposed that a civil penalty of Three Thousand Two Hundred Dollars ($3,200) be assessed against Respondent.

Section IV Total Proposed Penalty

14. Section 14 of FIFRA, 7 U.S.C. Section 1361, authorizes the issuance of this Complaint for the assessment of a civil penalty of up to 5,000 for each ++EP++ violation.

Page 3

The EPA proposes to assess a total civil penalty of $3,200 against the Respondent for the above-described violation.

Appropriateness of Proposed Penalty

15. The proposed penalty has been derived in accordance with the Guidelines for the Assessment of Civil Penalties 39 Fed. Reg. 27711 et seq. (1974) and the Interim Deviation from Civil Penalty Assessment Schedule, for the violations cited for a Category V Respondent. A copy of the Guidelines, a copy of the Interim Deviation from Civil Penalty Assessment Schedule, and a copy of the Civil Penalty Assessment Worksheet are enclosed.

Respondent was placed in Category V (total business revenues in excess of $1,000,000 per year) when the Complainant was unable to obtain specific information as to Respondent's gross annual sales. If this categorization is incorrect, the proposed penalty will be adjusted upon submittal of reliable financial information indicating another category is appropriate.

16. Respondent has the right, upon submittal of certified financial information, to consideration of its financial condition in mitigation of the proposed penalty insofar as is necessary to permit Respondent to continue in business.

NOTICE OF OPPORTUNITY FOR HEARING Section V Answer and Request for Hearing

17. As provided in Section 14(a) of FIFRA, 7 U.S.C. Section 1361, Respondent has the right to request a hearing to contest any material fact contained in the Complaint, or the appropriateness of the amount of the proposed penalty. Respondent has twenty (20) days after service of this Complaint to file its answer and request for a hearing with the Regional Hearing Clerk. Such request must be filed in accordance with the Consolidated Rules of Practices Governing the Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits, 40 C.F.R. Part 22, a copy of which is enclosed. The Consolidated Rules, Section22.15, describe what an answer and a request for a hearing are to contain. The answer and request for a hearing should be mailed to the Regional Hearing Clerk, U.S. Environmental Protection Agency, Region VII, 726 Minnesota Avenue, Kansas City, Kansas 66101.

Failure to Answer

18. If the Respondent fails to file a written answer to this Complaint and a request for a hearing within twenty (20) days of service of this Complaint ++EP++

and Notice of Opportunity for Hearing, such failure may constitute a binding admission of all allegations made in the Complaint and a waiver of Respondent's right to a hearing.

Page 4

A Default Order may thereafter be issued by the Regional Administrator and the civil penalty proposed herein shall become due and payable without further proceedings.

Section VI Settlement Conference

19. Whether or not a hearing is requested, an informal settlement conference may be arranged at Respondent's request. Respondent may confer with the EPA concerning (1) whether or not the alleged violations occurred, or (2) the appropriateness of the proposed penalty in relation to the size of Respondent's business, the gravity of the violation, and the effect of the proposed penalty on Respondent's ability to continue in business. EPA encourages all parties against whom a civil penalty is proposed to be assessed to pursue the possibility of settlement through informal conferences. To explore the possibility of settlement in this matter, contact Ms. Anne Rowland, Attorney, Office of Regional Counsel, EPA Region VII, 726 Minnesota Avenue, Kansas City, Kansas 66101, telephone (913)236-2853.

Please note that a request for an informal settlement conference does not extend the twenty (20) day period during which a written answer and request for a hearing must be submitted. The informal conference procedure may be pursued as an alternative to and simultaneously with the adjudicatory hearing procedure.

Date 9-19-86

/s/Morris Kay

Morris Kay

Regional Administrator

/s/ Anne Rowland

Anne Rowland

Attorney

Office of Regional Counsel

Enclosures: Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits, 40 C.F.R. Part 22 Guidelines for the Assessment of Civil Penalties Interim Deviation from Civil Penalty Assessment Schedule Civil Penalty Assessment Worksheet ++EP++

COLE CHEMICAL COMPANY

DOC 03 OF 03

ORDER AND JUDGMENT

07-87-C013

FIFRA

CHEM

19870320

19870320

MOD056949175

COLE CHEMICAL COMPANY

ST. LOUIS, MO

86-21-28-C(4)

07

ORDER AND JUDGMENT IN U.S. V. COLE CHEMICAL COMPANY

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,

v.

COLE CHEMICAL COMPANY, Defendant.

Cause No. 86-2128-C (4)

ORDER AND JUDGMENT

This matter is before the Court on plaintiff's motion for summary judgment.

Plaintiff seeks an order compelling the defendant to pay a civil penalty that was assessed by the Administrator of the Environmental Protection Agency (EPA) for violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. Section 136, et seq.

On May 18, 1979, and August 18, 1979, the EPA issued to defendant a notice of complaint and notice of opportunity for hearing entailing proposed civil penalties of $19,250.00 and $11,600.00 respectively, of violations of FIFRA. The cases were consolidated for hearing on April 28, 1980, and were argued to an administrative law judge (ALJ). On October 30, 1980, the ALJ issued a decision finding that defendant had violated various portions of FIFRA, and assessed a penalty against defendant in the amount of $6,250.00. In November 1980, defendant appealed the ALJ's decision and a regional hearing officer reviewed the ALJ's findings. On September 25, 1985, the regional hearing ++EP++

officer affirmed the decision of the ALJ and ordered defendant to pay the assessed penalty within 60 days of the date of its order.

Page 2

To date the defendant has failed to pay the penalty as ordered. This complaint followed seeking an order to compel defendant to pay the penalty.

Summary judgment is justified only when the Court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment. Wright, A. Miller & M. Kane, Federal Practice & Procedure Section 2727 p. 121 (2d ed. 1983). This burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party. See 10A Wright, Miller & Kane Section 2727. The Court need not decide whether the moving party has satisfied its ultimate burden of persuasion and until the Court finds that the moving party has discharged its burden of production. Addickes v. S. H. Kress & Co., 398 U.S. 1441 (1980).

The burden of production imposed by Rule 56 requires the moving party to make a prima facie showing that it is entitled to summary judgment. 10A Wright, Miller & Kane Section 2727. The moving party may make this showing by using credible evidence as set forth in Rule 56(c). Thereafter, the burden of production shifts to the nonmoving party, and requires that party to produce evidentiary material that gives rise to a genuine issue. Fed. R. Civ. P. 56(e), (f). ++EP++

Page 3

The nonmoving party can demonstrate a genuine issue by producing material that negates an essential element of the claim or can demonstrate that the moving party's evidence is insufficient to establish a cause of action. See Wright, Miller & Kane Section 2727, P. 130-131. If the nonmoving party cannot produce sufficient evidence or fails to present any evidence to make its claim, the moving party is entitled to summary judgment as a matter of law. Anderson v. Liberty Lobby, 106 S.Ct. 2505 (1986).

Defendant has failed to respond to plaintiff's motion for summary judgment. In the answer to the complaint, defendant disputes plaintiff's claim only to the extent that plaintiff attempts to collect an amount which defendant is unable to pay. Defendant states that its company is "a small company without any assets of any size or proportion but in fact are very minimal in that it has operated for a number of years in a loss position." Defendant further states that payment of the penalty will "force it into insolvency, bankruptcy or some kind of creditors' procedure."

Although defendant's allegations may be true, it does not negate an essential element of plaintiff's claim nor does it demonstrate that plaintiff's evidence is insufficient to state a cause of action. Plaintiff submitted evidence verifying all facts it alleged. At that point the burden of production shifted to defendant requiring it to respond with evidentiary material that would create a genuine issue. Defendant failed to meet its burden of production; therefore, no genuine issue of fact exists and summary judgment is appropriate. Accordingly, ++EP++

Page 4

IT IS HEREBY ORDERED that plaintiff's motion for summary judgment is GRANTED.

IT IS FURTHER ORDERED that defendant must pay the penalty in the amount of $6,250.00 within 30 days of the date of this Order.

Dated this 20th day of March, 1987.

/s/

Clyde S. Cahill

United States District Judge ++EP++

Page 7 FINAL ORDER

Accordingly, it is ORDERED, pursuant to Section 14(a) of the Federal Insecticide, Funficide, and Rodenticide Act, as amended, 7 U.S.C. 1361 (a) (1), and upon consideration of the entire record herein, after evaluating the gravity of the violations and the appropriateness of the penalty proposed, that the respondent Cole Chemical Company, pay, within sixty (60) days of service upon it of the final order, the amount of $6250.00 as a civil penalty for violations of the said Act by forwarding to the Regional Hearing Clerk a cashier's check or a certified check for the said amount payable to the Treasurer, United States of America, 40 C.F.R. Sec. 22.31(b).

/s/

J. F. GREENE

Administrative Law Judge

October 30, 1980

Washington, D.C.

Note: This Final Order shall become the final order of the Regional Administrator unless appealed or reviewed as provided by 40 C.F.R. Sec. 168.51 of the Rules of Practice. ++EP++

COLE CHEMICAL COMPANY

DOC 02 OF 03

ORDER

07-87-C03

FIFRA

CHEM

19870320

19850925

MOD056949175

COLE CHEMICAL COMPANY

ST. LOUIS, MO

86-2128-C(4)

07

ORDER IN U.S. V. COLE CHEMICAL COMPANY

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION VII 726 MINNESOTA AVENUE KANSAS CITY, KANSAS 66101

IN THE MATTER OF COLE CHEMICAL COMPANY Respondent

I.F. & R. Docket

NO. VII-322C/347C

ORDER

Upon motion by Complainant and for reasons shown therein, the initial decision in the above-captioned case is hereby affirmed.

Respondent shall pay the penalty of $6,250 ordered in the initial decision. The penalty must be paid within sixty (60) days of the receipt of this Order.

It is SO ORDERED. /s/

Timothy L. Amsden

Regional Hearing Officer

Certificate of Service

I certify that the original of this Order has been hand delivered to the Regional Hearing Clerk, Region VII, a true and correct copy was hand delivered to Anne Rowland, Office of Regional Counsel, and a a true and correct copy sent by certified mail, return receipt requested, to:

Harvey C. Rosen, President

Cole Chemical Corporation

2074 Concourse

St. Louis, MO 63146

on this 25th day of September 1985.

/s/ ++EP++

COLE CHEMICAL COMPANY

DOC O1 OF 03

COMPLAINT

07-87-C013

FIFRA

CHEM

19870320

19861017

MOD056949175

COLE CHEMICAL COMPANY

ST. LOUIS, MO

86-21-28-C(4)

07

COMPLAINT IN U.S. V. COLE CHEMICAL COMPANY

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,

v.

COLE CHEMICAL COMPANY, Defendant.

CIVIL ACTION NO.

COMPLAINT OF UNITED STATES OF AMERICA

The United States of America, by its undersigned attorneys, by the authority of the Attorney General, and at the request of and on behalf of the Administrator of the United States Environmental Protection Agency (EPA) states as follows:

1. This is an action brought pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 8 U.S.C. Section 136 et seq, seeking an order compelling the defendant to pay a civil penalty assessed by the Administrator of the EPA in an Administrative action concluded on September 25, 1985.

2. This court has subject matter jurisdiction pursuant to 28 U.S.C. Sub-Section 1331, 1345, and 1355, and 7 U.S.C. Section 1361(a) (5).

3. Defendant Cole Chemical is a Missouri Corporation which, at all times relevant hereto, was engaged in business in St. Louis, Missouri. Venue is therefore proper in the Eastern Division of the Eastern District of Missouri pursuant to 28 U.S.C. Sub-Section 1391(b), 1391(c), and 1395(a). ++EP++

Page @

4. On May 18, 1979, EPA issued to Defendant Cole Chemical Company a complaint and Notice of Opportunity for Hearing, Docket No. I.F. & R. VII-3221C, proposing a civil penalty of $ 19,250.00 for violations of FIFRA, 7 U.S.C. Section 136 et seq., thereby commencing an administrative proceeding before Region VII of EPA. A true copy of the Complaint and Notice is attached hereto as Exhibit A. The Administrative Complaint was properly served on defandant Cole Chemical.

5. Thereafter, on August 18, 1979, EPA issued to defendant Cole Chemical Company a Complaint and Notice of Opportunity for Hearing, No. I.F.&R. VII-347C, proposing a civil penalty of $11,600.00 for violations of FIFRA, 7 U.S.C. Section 136 et seq., thereby commencing a second administrative proceeding before EPA Region VII. A true copy of this Complaint and Notice is attached hereto as Exhibit B. The Complaint was properly served on defendant Cole Chemical Company.

6. A hearing on the consolidated cases was held on April 28, 1980, before the Administrative Law Judge (ALJ) and on October 30, 1980, the ALJ issued a decision finding that the defendant had shipped unregistered and unbranded pesticides as had been alleged, and assessed a penalty of $ 6,250.00 against defendant. A copy of the initial decision is attached hereto as Exhibit C.

7. On or about Novembbr 26, 1980, defendant mailed an appeal taking exception to the Judge's findings, and a Regional ++EP++ Judicial Officer, (RJO), was appointed to review the case.

Page 3

8. On September 25, 1985, the RJO affirmed the initial decision and ordered the penalty be paid within sixty (60) days. A copy of the Final Order is attached hereto as Exhibit D. The Final Order was properly served on Defendant.

9. No appeal was taken from the final decision.

10. Although demand has been made upon defendant to pay the $6,250.00 as directed by the Order, defendant has failed and refused to do so.

Claim for Relief

11. Paragraphs 1 through 10 are hereby incorporated by reference.

12. Section 14 of FIFRA, 7 U.S.C. Section 1361a (1-5), provides, in pertinent part, as follows:

(a) Civil Penalties

(1) In general

Any registrant, commercial applicator, wholesaler, dealer, retailer, or other, distributor who violates any provision of this subchapter may be assessed a civil penalty by the Administrator of not more than $5,000 for each offense.

(2) Private applicator

Any private applicator or other person not included in paragraph (1) who violates any provision of this subchapter subsequent to receiving a written warning from the Administrator or following a citation for a prior violation, may be assessed a civil penalty by the Administrator of not more than $1,000 for each offense: Provided, that any applicator not included under paragraph (1) of this subsection who holds or applies registered pesticides, ++EP++

or use dilutions of registered pesticides, only to provide a service of controlling pests without delivering any unapplied pesticide to any person so served, and who violated any provision of this subchapter may be assessed a civil penalty by the Administrator of not more than $500 for the first offense nor more than $1,000 for each subsequent offense.

Page 4

(3) Hearing

No civil penalty shall be assessed unless the person charged shall have been given notice and opportunity for a hearing on such charge in the county, parish, or incorporated city of the residence of the person charged.

(4) Determination of penalty

In determining the amount of the penalty, the Administrator shall consider the appropriateness of such penalty to the size of the business of the person's charged, the effect on the person's ability to continue in business, and the gravity of the violation. Whenever the Administrator finds that the violation occurred despite the exercise of due care of did no cause significant harm to health or the environment, the Administrator may issue a warning in lieu of assessing a penalty.

(5) Reference to Attorney General

In case of inability to collect such civil penalty or failure of any person to pay all, or such portion of such civil penalty as the Administrator may determine, the Administrator shall refer the matter to the Attorney General, who shall recover such amount by action in the appropriate United States District Court.

13. Defendant's failure or refusal to pay the penalty in the amount of $6,250.00 as directed in the Order is a violation of Section 14 of FIFRA, 7 U.S.C. Section 13611, for which defendant is liable. ++EP++

Page 5 Prayer for Relief

WHEREFORE, plaintiff requests that this Court:

(a) Order defendant to comply with the Final Order issued by EPA and pay to the Treasurer of the United States of America, the amount of $6,250.00, plus interest from the date payment was due under the Final Order;

(b) Order the defendant to pay the costs of this action; and

(c) Grant such other relief as may be appropriate.

Respectfully submitted,

/s/

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

/s/

STEVEN R. BAER, Attorney

Environmental Enforcement Section

United States Department of Justice

Washington, D.C. 20530

(202) 633-5471

THOMAS E DITTMEIR

United States Attorney

By:/s/

JOSEPH B. MOORE

Assistant United States Attorney

Eastern District of Missouri

1114 Market Street

St. Louis, Missouri 63103

(314) 425-4200 ++EP++

Page 6

/s/

ANNE W. ROWLAND

Office of Regional Counsel

U.S. Environmental Protection Agency

726 Minnesota Avenue

Kansas City, Kansas 66101

(913) 236-2853 ++EP++

STREETER FLYING SERVICE

DOC 02 OF 02

DEFAULT AND JUDGMENT

07-87-C011

FIFRA

OTHER

19871028

19871028

IAD105348221

STREETER FLYING SERVICE

BLOOMFIELD, IA

87-623-A

07

DEFAULT AND JUDGMENT IN U. S. V. STREETER FLYING SERVICE

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

UNITED STATES OF AMERICA, Plaintiff,

v.

STREETER FLYING SERVICE, Defendant.

Civil No. 87-623-A

DEFAULT AND JUDGMENT

It appearing by the declaration of counsel for the plaintiff that the defendant has failed to appear, plead, or otherwise defend as provided in the Federal Rules of Civil Procedure, the defendant's default is hereby entered.

A default having been entered against the defendant and counsel for the plaintiff having requested judgment against the default defendant and having filed a proper declaration all in accordance with Rule 55 of the Federal Rules of Civil Procedure;

Judgment is rendered in favor of the plaintiff, United States of America, and against the defendant, Streeter Flying Service, in the sum of $ 500.00, together with interest from October 26, 1985 to the date the judgment is paid, and for costs in the sum of $ 50.04, and all future costs.

Dated this 28th day of October, 1987.

JAMES R. ROSENBAUM

Clerk, U. S. District Court

/S/

Deputy Clerk ++EP++

STREETER FLYING SERVICE

DOC 01 OF 02

COMPLAINT

07-87-C011

FIFRA

OTHER

19871028

19870810

IAD105348221

STREETER FLYING SERVICE

BLOOMFIELD, IA

87-623-A

07

COMPLAINT IN U.S. V. STREETER FLYING SERVICE

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA WESTERN DIVISION

UNITED STATES OF AMERICA Plaintiff,

v.

GEORGE MONEY, d/b/a ECONOMY

PRODUCTS CO., INC., Defendant.

Civil No. 85-5-W

AFFIDAVIT FOR DEFAULT AND JUDGMENT

State of Iowa, County of Polk.

Christopher D. Hagen, being first duly sworn, deposes and says that he is Assistant United States Attorney for the Southern District of Iowa, and in such capacity represents the plaintiff in the above entitled and numbered action:

That on June 7, 1985, the defendant was duly served with a copy of the summons and complaint in the action within the Southern District of Iowa; that the said defendant has failed to appear, plead, or otherwise defend herein within the time allowed, and therefore is now in default; that to his best information and belief the defendant is not an infant or incompetent person and not in the military service within the purview of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended;

That the claim of the plaintiff is for a sum certain for ++EP++

the recovery of a civil penalty assessed by the Environmental Protection Agency; that the amount due is $1,350.00, with interest at the legal rate from July 6, 1978 and for $6,720.00 with interest at the legal rate from November 19, 1984, together with costs of $35.88. That this affidavit is made in compliance with Rule 55(a) and (b) of the Federal Rules of Civil Procedure, for the purpose of requesting the Clerk of this Court, or his lawful Deputy, at this time to enter default and judgment against the defendant in the amount set forth above.

/s/Christopher Hagen

Christopher D. Hagen

Assistant U.S. Attorney

Sworn to and subscribed before me this 25th day of September, 1985.

/s/

Notary Public ++EP++

TURNER COPTER SERVICE

DOC 02 OF 02

CONSENT DECREE

07-87-C009

FIFRA

OTHER

19870708

19870708

IAD062250857

TURNER COPTER SERVICE, INC.

ELLIOT, IA

87-15-W

07

CONSENT DECREE, U.S. v. TURNER COPTER SERVICES, INC.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA WESTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff, v. TURNER COPTER SERVICES, INC., Defendant. Civil Action No. 87-15-W

CONSENT DECREE

WHEREAS, Plaintiff United States of America (hereinafter "United States"), on behalf of the United States Environmental Protection Agency ("EPA"), having filed a Complaint herein on February 20, 1987, alleging that Defendant Turner Copter Services, Inc. failed to pay a civil penalty assessed in an administrative action by EPA for violations of the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. Section 136 et seq.;

WHEREAS, Defendant was assessed a total penalty of Fifteen Hundred dollars ($1500) in In the Matter of: Turner Copter Services, Inc., Docket No. IF&R-VII-619C-85P, FIFRA Appeal No. 85-4, for violations of Section 12(a) (2) (1) of FIFRA, 7 U.S.C. Section 136j(a) (2) (G);

WHEREAS, Plaintiff has alleged that Defendant has failed to pay the Fifteen Hundred dollar ($1500) civil penalty assessed in In the Matter of: Turner Copter Services, Inc.;

WHEREAS, the United States and Defendant agree that settlement of this matter and entry of this Consent Decree are in ++EP++ the public interest and are intended to avoid further expensive and protracted litigation and to settle and resolve the claims that were raised by the United States in this action.

Page 2

NOW, THEREFORE, before the taking of any testimony herein, and without trial or adjudication of any issue of fact or law herein, and upon consent of the parties, by their attorneys and authorized officials, it is HEREBY, ADJUDGED and DECREED AS FOLLOWS:

I.

The Court has jurisdiction over the subject matter of this action and over the parties pursuant to 28 U.S.C. Sub-Section 1331, 1345 and 1355 and Section 16(c) of FIFRA, 7 U.S.C. Section 136n(c). Venue is proper in this judicial district pursuant to 28 U.S.C. Sub-Section 1391(c) and 1395(a). The Complaint filed herein states a claim upon which relief may be granted against Defendant.

II.

The provisions of this Consent Decree shall apply to and be binding upon the parties to this action, their officers, directors, agents, servants, employees, successors, assigns, and all persons, firms, and corporations in active concert or participation with them. Defendant shall give notice of this Consent Decree to any successors in interest prior to transfer of ownership or operation of Turner Copter Services, Inc. and shall simultaneously notify EPA that such notice has been given. ++EP++

Page 3 III.

Within thirty (30) calendar days of entry of this Consent Decree, Defendant shall pay to the United States the total amount of Nine Hundred and Fifty dollars ($950) in satisfaction of the civil penalty assessed but never paid in In the Matter of: Turner Copter Services, Inc. Payment shall be by certified check made payable to "Treasurer, United States of America", and shall be delivered to the Office of the United States Attorney, Southern District of Iowa, 115 U.S. Courthouse, Des Moine, Iowa 50309 and marked to the attention of John E. Beamer, Assistant United States Attorney. Copies of the certified check shall be sent to Robert L. Hines, Attorney, Department of Justice, Environmental Enforcement Section, Land and Natural Resources Division, 10th & Pennsylvania Avenue, N.W., Washington, D.C. 20530 and Henry Rompage, Office of Regional Counsel, Region VII, U.S. EPA, 726 Minnesota Avenue, Kansas City, Kansas 66101.

IV.

If Defendant fails to meet the thirty-day deadline imposed in Section III, the entire Fifteen Hundred dollars ($1500) assessed by the Administrator in In the Matter of: Turner Copter Services, Inc., shall become due and payable. Such sum shall be paid by certified check made payable to "Treasurer, United States of America," and shall be delivered within sixty (60) calendar days from the entry of this consent decree to the ++EP++ Office of the United States Attorney, Southern District of Iowa 115 U.S. Courthouse, Des Moines, Iowa 50309 and marked to the Attention of John E. Beamer, Assistant United States Attorney.

Page 4

Copies of the certified check shall be sent to Robert L. Hines, Attorney, Department of Justice, Environmental Enforcement Section, Land and Natural Resources Division, 10th & Pennsylvania Avenue, N.W., Washington, D.C. 20530 and Henry Rompage, Office of Regional Counsel, Region VII, U.S. EPA, 726 Minnesota Avenue, Kansas City, Kansas 66101.

V.

A. Nothing contained in this Consent Decree shall be construed to prevent or limit the rights of the United States to obtain penalties, interest, costs or fees under FIFRA or any other Federal statutes or regulations for violations of this Consent Decree or any other provisions of law.

B. This Consent Decree in no way affects or relieves Defendants of their responsibility to comply with any other Federal, State or local law or regulations. The parties agree that it is the responsibility of Defendant to achieve and maintain complete compliance with all applicable Federal and State laws, regulations and permits, and that compliance with this Consent Decree shall be no defense to any actions commenced pursuant to said laws, regulations or permits, except as expressly provided herein. C. This Consent Decree shall be in full settlement and ++EP++ satisfaction of the Complaint filed herein by the United States and of all civil claims and penalties related thereto.

Page 5

D. Nothing contained in this Consent Decree is intended or shall be construed as a waiver by the United States of its right to institute enforcement action or abatement action against Defendant for any past, present or future violations of any statutes or rules or regulations administered by the United States except those violations specified in the Complaint filed herein.

E. This Consent Decree does not limit or affect the rights of the United States or Defendant as against any third parties, nor the rights of third parties, not parties to this Consent Decree, against Defendant. Nor shall this Consent Decree operate to release, waive, limit or impair in any way the claims, rights, remedies or defenses of the United States or Defendants against any person or entity not a party hereto.

VI.

A. This Consent Decree represents the entire agreement between the parties. Prior drafts of this decree shall not be used in any action involving the interpretation or enforcement of this Decree.

B. There shall be no modification of this Consent Decree without the written consent of all parties and the approval of the Court. ++EP++

Page 6 VII.

The Court shall retain jurisdiction until September 28, 1987 to enforce the terms and conditions of this Consent Decree and to resolve disputes arising hereunder as may be necessary or appropriate for the construction or execution of this Consent Decree.

VIII.

Each party shall bear its own costs and attorneys' fees in this action. Should Defendant subsequently be determined to have violated the terms and conditions of this Consent Decree, then Defendant shall be liable to the United States for any costs and attorneys' fees incurred by the United States in any actions against Defendants for noncompliance with this Consent Decree. The parties hereby consent to entry of the foregoing Consent Decree:

FOR THE UNITED STATES OF AMERICA:

/s/

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

United States Department of Justice

Washington, D.C. 20530

CHRISTOPHER D. HAGEN

United States Attorney

By: /s/ John E. Beamer

JOHN E. BEAMER

Assistant United States Attorney

Southern District of Iowa

115 U.S. Courthouse

Des Moines, Iowa 50309 ++EP++

Page 7

/s/ Robert L. Hines

ROBERT L. HINES, Attorney

Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

10th & Pennsylvania, N.W.

Washington, D.C. 20530

/s/ Thomas L. Adams Jr

THOMAS L. ADAMS

Assistant Administrator

Enforcement and Compliance Monitoring

U.S. Environmental Protection Agency

401 M. Street, S.W.

Washington, D.C. 29460

/s/ Henry F. Rompage

HENRY F. ROMPAGE

Assistant Regional Counsel

U.S. Environmental Protection Agency

Region VII

726 Minnesota Avenue

Kansas City, KS 66101 ++EP++

Page 8

FOR DEFENDANT:

/s/ Philip L. Turner

PHILIP L. TURNER, President

Turner Copter Services, Inc.

Rural Route #1

Elliot, Iowa 51532

/s/ Steven C. Schoenebaum

STEVEN C. SCHOENEBAUM

Attorney for Defendant

Two Ruan Center, Suite 1100

Des Moines, Iowa 50309

Judgment is hereby entered in accordance with the foregoing Consent Decree this 8th day of July, Des Moines, Iowa. The parties are hereby ordered to comply with the terms thereof.

/s/ Donald E. O'Brien

UNITED STATES DISTRICT JUDGE ++EP++

TURNER COPTER SERVICE

DOC 01 OF 02

COMPLAINT

07-87-C009

FIFRA

OTHER

19870708

19870220

IAD062250857

TURNER COPTER SERVICE, INC.

ELLIOT, IA

87-15-W

07

COMPLAINT, U.S. V. TURNER COPTER SERVICES, INC.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA

UNITED STATES OF AMERICA, Plaintiff, v. TURNER COPTER SERVICES, INC. Defendant. Civil Action No. 87-15-W

COMPLAINT

The United States of America, by its undersigned attorneys, and on behalf and at the request of the Administrator of the United States Environmental Protection Agency ("EPA"), brings this action against the above named Defendant and alleges as follows:

JURISDICTION AND VENUE

1. This is a civil action instituted pursuant to Section 14(a)(5) of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA" or the "Act"), 7 U.S.C. Section 1361(a)(5), to recover civil penalties imposed upon Turner Copter Services, Inc., of Elliott, Iowa by EPA pursuant to a Final Order issued on March 18, 1986. (A copy of the Final Order is attached hereto as Exhibit 1.)

2. The court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Sub-Section 1331, 1345 and 1355 and Section 16(c) of the Act, 7 U.S.C. Section 136n(c).

3. Venue is appropriate in this judicial district pursuant to 28 U.S.C. Section 1391(c) and 1395(a). ++EP++

Page 2

4. Defendant Turner Copter Services, Inc. ("TCS") at all times relevant hereto, is and has been conducting business at Elliott, Iowa, which is within the jurisdiction of this Court.

GENERAL ALLEGATIONS

5. Paragraphs 1-4 are incorporated herein by reference.

6. On May 3, 1985, EPA issued to defendant TCS a Complaint and Notice of Opportunity For Hearing, No. IF&R VII-619C-85P, thereby commencing an administrative proceeding before the United States. The complaint charged the defendant with three violations of Section 12(a)(2)(G), 7 U.S.C. 136j(a)(2)(G) of the Act and proposed a civil penalty of $500 per violation.

7. The complaint alleged that during the summer of 1983, TCS, in the course of performance of contracts to spray pesticides on certain properties, had sprayed beyond the intended sites so as to cover sensitive crops and plants and a pedestrian.

8. On June 11, 1985, defendant filed an Answer, denying the allegations in the administrative complaint.

9. On June 19, 1985, the Administrative Law Judge issued a prehearing order requiring both parties to submit information.

10. Plaintiff complied with the order of June 19, 1985, but defendant failed to comply.

11. On August 2, 1985, Plaintiff filed a Motion for Default, which defendant did not respond to.

12. Default was granted on September 9, 1985, and defendant was assessed a penalty of $1,500.00, and ordered to pay within 60 days of service of the Final Order. ++EP++

Page 3

T13. On October 3, 1985, defendant filed a Motion to Set Aside Default, which was denied on the same day.

14. On October 7, 1985, defendant filed a Notice of Appeal, which Plaintiff responded to. 15. The Administrator upheld the Default Order on November 5, 1985.

16. On November 25, 1985, TCS moved for reconsideration of the Administrative Law Judge's Final Order dated November 5, 1985. The Final Order was affirmed on March 18, 1986.

17. Under the terms of the Final Order the civil penalty was to be paid by May 2, 1986. To date, defendant has not paid the penalty.

FIRST CLAIM FOR RELIEF

18. Paragraphs 1-17 are incorporated herein by reference.

19. On or about June 6 and 7, 1983, defendant aerially applied Albaugh Lo-Vol 6D Herbicide and Velsicol Banvel Herbicide to pastureland. Defendant's use of these herbicides was inconsistent with label directions in that it was sprayed onto or allowed to drift onto sensitive crops.

20. It is a violation of Section 12(a)(2)(G) of FIFRA, 7 U.S.C. Section 136j(a)(2)(G), for any person to use any registered pesticide in a manner inconsistent with its labeling.

21. Defendant has failed to pay the Five Hundred Dollar ($500) civil penalty assessed in In the Matter of: Turner Copter ++EP++ Services, Inc., Docket No. IF&R-VII-619C-85P, FIFRA Appeal No. 85-4, for its violation of Section 12(a)(2)(G) of FIFRA, 7 U.S.C. Section 136j(a)(2)(G).

Page 4

22. Pursuant to Section 14(a)(5) of FIFRA, 7 U.S.C. Section 1361(a)(5) defendant TSC is subject to the entry of judgment in the amount of Five Hundred Dollars ($500) plus interest at current prevailing rates.

SECOND CLAIM FOR RELIEF

23. Paragraphs 1-22 are incorporated herein by reference.

24. On or about June 15, 1983, defendant aerially applied a tank mix of Albaugh Lovol 6D Herbicide and Velsicol Banvel Herbicide to 265 acres of pasture. Defendant's use of these herbicides was inconsistent with label directions in that it was sprayed onto or allowed to drift onto susceptible plants.

25. It is a violation of Section 12(a)(2)(G) of FIFRA, 7 U.S.C. Section 136j(a)(2)(G), for any person to use any registered pesticide in a manner inconsistent with its labeling.

26. Defendant has failed to pay the Five Hundred Dollar ($500) civil penalty assessed in In the Matter of: Turner Copter Services, Inc., Docket No. IF&R-VII-619C-85P, FIFRA Appeal No. 85-4, for its violation of Section 12(a)(2)(G) of FIFRA, 7 U.S.C. Section 136j(a)(2)(G)

27. Pursuant to Section 14(a)(5) of FIFRA, 7 U.S.C. Section 1361(a)(5), defendant TSC is subject to the entry of judgment in the amount of Five Hundred Dollars ($500) plus interest at current prevailing rates. ++EP++

Page 5 THIRD CLAIM FOR RELIEF

28. Paragraphs 1-27 are incorporated herein by reference.

29. On or about August 27, 1983, defendant aerially applied Stauffer Trithion 8-E Insecticide to a four-acre cornfield. At approximately 8:15 p.m. on that same day, a pedestrian was walking along the roadway when she was covered with the spray from the application of the insecticide. The label stated "Poison - Danger - May be fatal if swallowed or absorbed through skin. Use precautions . . . do not apply or allow to drift to areas occupied by unprotected humans . . ." Defendant's use of the insecticide was inconsistent with the label directions in that it was applied to or allowed to drift onto areas occupied by humans.

30. It is a violation of Section 12(a)(2)(G) of FIFRA, 7 U.S.C. Section 136j(a)(2)(G), for any person to use any registered pesticide in a manner inconsistent with its labeling.

31. Defendant has failed to pay the Five Hundred Dollar ($500) civil penalty assessed in In the Matter of: Turner Copter Services, Inc., Docket No. IF&R-VII-619C-85P, FIFRA Appeal No. 85-4, for its violation of Section 12(a)(2)(G) of FIFRA, 7 U.S.C. Section 136j(a)(2)(G)

32. Pursuant to Section 14(a)(5) of FIFRA, 7 U.S.C. Section 1361(a)(5), defendant TSC is subject to the entry of judgment in the amount of Five Hundred Dollars ($500) plus interest at current prevailing rates. WHEREFORE, Plaintiff United States of America prays that this Court:

(1) Enter judgment for plaintiff United States of America and against defendant Turner Copter Service in the amount of $1,500 together with costs and interest from May 2, 1986 to the date the judgment is paid; ++EP++

Page 6

T(2) Order the Defendant to pay the United States its costs and fees, and (3) Grant such other relief as this Court may deem just and proper.

Respectfully submitted,

/s/ Henry Habicht

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Christopher D. Hagen

United States Attorney

Southern District of Iowa

/s/ John E. Beamer

John E. Beamer

Assistant United States Attorney

Southern District of Iowa

115 U.S. Courthouse

Des Moines, Iowa 50309

/s/ David I.C. Thomson

DAVID I. C. THOMSON

ROBERT HINES

Attorneys, Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

(202) 633-4485

OF COUNSEL: HENRY F. ROMPAGE Office of Regional Counsel Region VII U.S. EPA 726 Minnesota Avenue Kansas City, Kansas 66101 ++EP++

Page EXH-1-1

BEFORE THE ADMINISTRATOR

U.S. ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

In the Matter of: Turner Copter Services, Inc. Docket No. IF&R-VII-619C-85 P FIFRA Appeal No. 85-4

ORDER ON RECONSIDERATION

On November 25, 1985, Turner Copter Services, Inc. (Petitioner) moved for reconsideration of the Administrator's Final Decision dated November 5, 1985. That Decision affirmed entry of a default order against Petitioner and imposed a penalty of $1,500 for three violations for use of registered pesticides in a manner inconsistent with their labeling, contravening FIFRA Section 12, 7 U.S.C. Section 136j(a)(2)(G).

In its Motion for Reconsideration, Petitioner concedes negligence in responding to process, thereby supporting the entry of the Default Order. Nevertheless, Petitioner submits that the equities of this case require that a hearing be granted to address the merits of the underlying complaint. Based on the Final Decision and a thorough review of the record, I must deny Petitioner's request. As stated in the Final Decision, the entry of a default order requires that I accept as true all facts alleged in the complaint. 40 CFR Section 22.17(a). Upon ++EP++ reconsideration of the evidence, I remain persuaded that those facts establish by a preponderance of the evidence the violations charged.

Page EXH-1 2

Specifically, Petitioner argues that business commitments precluded a timely response to both the pre-hearing order to list witnesses and exhibits and to the proposed default order entered in this case; also, that Petitioner would have relied on the same witnesses and exhibits presented by Complainant. Further, Petitioner argues that it did not appreciate the consequences of its failure to respond to these orders. Finally, Petitioner avers that laboratory analyses of the alleged improperly sprayed pesticides do not demonstrate liability so as to support the entry of the Default Order.

Petitioner's arguments do not demonstrate the good cause required to reopen the Default Order and to grant Petitioner a hearing. Petitioner, acting pro se, is held to the same standards as any legal representative practicing before the Agency; therefore, negligence and a failure to appreciate the consequences of its acts are no excuse. 40 CFR Section 22.10. Also, I see no reason to question the probative value of the laboratory analyses.

Although Petitioner has raised speculative, open-ended questions as to the meaning of the laboratory analysis results, those speculations do not lead ineluctably to the conclusion that a different result would obtain were this case to proceed ++EP++ to a hearing./1/

Page EXH-1 3

Absent a gross misapprehension of fact, the laboratory analyses must be accepted as true and the Default Order must stand. 40 CFR Section 22.17(a). ((/1/ Specifically, Petitioner notes that traces of IsoOctyl Ester, a component of the pesticides that were found to have been sprayed on the adjoining properties, were absent from the pesticide residue samples taken from those adjoining properties. According to Petitioner, this absence suggests that Turner Copter Services, Inc. did not overspray its intended sites. An equally persuasive explanation, however, is that the IsoOctyl Ester volatilized over time.))

Although it is cold comfort, Petitioner must be assured that I have considered all arguments and submissions leading to this Order on Reconsideration. That due process results in the denial of the requested opportunity for a hearing does not indicate that Petitioner has received less than full consideration of the equities of this case. Nevertheless, at this stage of the proceedings, my discretion is bound by further consideration of the mission of the Agency as well as its limited resources. It is the allocation of those resources which gives rise to the prejudicial impact of indiscriminately granting motions to reopen default judgments. In this case, the Default Order must be affirmed. So ordered.

/s/ Gielding E. Lamason, Jr. for

Ronald L. McCallum

Chief Judicial Officer

Dated: MAR 18 1988 ++EP++

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order On Reconsideration In the Matter of Turner Copter Services, Inc. Docket No. IF&R-VII-619C-85P, FIFRA Appeal No. 85-4, were sent to the following persons in the manner indicated: By certified mail, return receipt requested: Phillip L. Turner, President Turner Copter Services, Inc. Rural Route #1 Elliott, IA 51532 By 1st class mail, postage prepaid: Henry Rompage, Esq. Office of Regional Counsel U.S. EPA, Region VII 726 Minnesota Avenue Kansas City, MO 66101

Ms. Diana Reid

Regional Hearing Clerk

U.S. EPA, Region VII

726 Minnesota Avenue

Kansas City, MO 66101

The Honorable Jim Lightfoot

1609 Longworth Building

Washington, D.C. 20515

By hand-delivery:Bessie Hammiel Hearing Clerk U.S. EPA Headquarters 401 M Street, S.W. Washington, DC 20460

/s/ Eileen J. Barnhardt

Eileen J. Barnhardt

Secretary to the Chief

Judicial Officer

Dated: MAR 18 1986 ++EP++

FARMER'S GRAIN AND FEED

DOC 01 OF 01

FINAL JUDGMENT BY CONSENT

07-87-C007

FIFRA

OTHER

19870929

19870929

NED980859243

FARMER'S GRAIN AND FEED

OSHKOSH, NE

85-0-933

07

FINAL JUDGMENT BY CONSENT, UNITED STATES, PLAINTIFF, V. FARMERS GRAIN AND FEED COMPANY, AND OSHKOSH GRAIN, INC., DEFENDANTS

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA Plaintiff, v. FARMERS GRAIN AND FEED COMPANY, AND OSHKOSH GRAIN, INC., Defendants, CIVIL NO. 85-0-933

FINAL JUDGMENT BY CONSENT

Plaintiff, the United States of America, having filed its Amended Complaint herein, and the Defendants Farmers Grain and Feed Company, and Oshkosh Grain, Inc., having consented to the making and entry of this Final Judgment without trial, hereby agree as follows:

1. This Court has jurisdiction over the subject matter of this litigation and over all parties thereto. The Amended Complaint herein states a claim upon which relief can be granted.

2. The Defendants hereby admit all the allegations of Plaintiff's Amended Complaint and therefore agree to the entry of this judgment.

IT IS THEREFORE HEREBY ORDERED, ADJUDGED AND DECREED:

1. That judgment should be and hereby is entered in favor of the United States and against the defendants, jointly and severally, in the amount of $1,000.00, together with interest at the rate of 9% per annum from June 6, 1985 to the date of this Order, plus interest thereafter at the judgment rate of 7.22 % per annum, plus the costs of this action. ++EP++

Page 2

2. That the Defendants either jointly or separately must satisfy this judgment by delivering to Douglas R. Semisch, Assistant United States Attorney, District of Nebraska, P.O. Box 1228-DTS, Omaha, Nebraska, a certified check in the amount of $1,000.00 made payable to the U.S. Treasury, within 30 days after the date of this order. Upon receipt of said amount, the United States shall file a Satisfaction of Judgment.

3. That the United States shall not execute upon this judgment for 30 days following the entry of this order.

4. In the event that the defendants fail to pay the $1,000.00 within 30 days of this Order, the full amount set forth in paragraph 1. above shall become immediately due and payable, and an additional amount of $50.00 per day of delayed payment shall be added to the payable amount. Nothing herein shall be construed to limit or restrict in any way the remedies available to the plaintiff to collect upon said judgment. Dated this 29th day of September 1987.

BY THE COURT:

/s/

JUDGE, U.S. DISTRICT COURT

RONALD D. LAHNERS

United States Attorney

District of Nebraska

/s/ Douglas R. Semisch

DOUGLAS R. SEMISCH

Assistant U.S. Attorney

P.O. Box 1228-DTS

Omaha, NE 68101 ++EP++

Page 3

/s/

ROGER J. MARZULLA, Acting

Acting Assistant Attorney General

Land and Natural Resources Division

U.S. Department of Justice

/s/ David I. C. Thomson

DAVID I. C. THOMSON

Attorney

Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

10th & Constitution Avenue, N.W.

Washington, D.C. 20530

/s/ Thomas L. Adams, Jr.

THOMAS L. ADAMS, JR.

Assistant Administrator for Enforcement and

Compliance Monitoring

U.S. Environmental Protection Agency

Washington, D.C. 20460

/s/ Henry F. Rompage

HENRY F. ROMPAGE

Assistant Regional Counsel

U.S. EPA - Region VII

Kansas City, Kansas

FARMER'S GRAIN AND FEED CO., and OSHKOSH GRAIN, INC. By: /s/ Eugene J. Hynes EUGENE J. HYNES P.O. Box 18 Oshkosh, NE 69154 ++EP++

GEORGE MONEY, D/B/A ECONOMY PRODUCTS

DOC 04 OF 04

DEFAULT AND JUDGMENT

07-85-C005

FIFRA

OTHER

19850925

19850925

NED065122087

ECONOMY PRODUCTS CO., INC.

OMAHA, NE

85-5-W

07

DEFAULT AND JUDGMENT IN U.S. V. GEORGE MONEY, D/B/A ECONOMY PRODUCTS CO., INC.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA WESTERN DIVISION

UNITED STATES OF AMERICA Plaintiff,

v.

GEORGE MONEY, d/b/a ECONOMY PRODUCTS CO., INC., Defendant.

Civil No. 85-5-W

DEFAULT AND JUDGMENT

It appearing by the affidavit of counsel for the plaintiff that the defendant has failed to appear, plead, or otherwise defend as provided in the Federal Rules of Civil Procedure, the defendant's default is hereby entered.

A default having been entered against the defendant and counsel for the plaintiff having requested judgment against the defaulted defendant and having filed a proper affidavit all in accordance with Rule 55 of the Federal Rules of Civil Procedure;

Judgment is rendered in favor of the plaintiff, United States of America, and against the defendant, George Money, in the sum of:

Principal $8,070.00 Interest at the legal rate from 7/6/78 to 9/25/85 on $1350.00 and 682.98 Interest at the legal rate from 11/19/84 to 9/25/85 on $6,720.00 451.45 TOTAL $9,293.33 ++EP++

together with interest thereon at the legal rate of 7.91% from date of this judgment, and for costs in the sum of $35.88, and all future costs.

Page 2

This day of September, 1985.

JAMES R. ROSENBAUM

Clerk, U.S. District Court

/s/ Fred O Morrow

Deputy Clerk ++EP++

GEORGE MONEY D/B/A ECONOMY PRODUCTS

DOC 03 OF 04

AFFIDAVIT FOR DEFAULT AND JUDGMENT

07-85-C005

FIFRA

OTHER

19850925

19850925

NED065122087

ECONOMY PRODUCTS CO., INC.

OMAHA, NE

85-5-W

07

AFFIDAVIT FOR DEFAULT AND JUDGMENT IN U.S. V. GEORGE MONEY, D/B/A ECONOMY PRODUCTS CO., INC.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA

UNITED STATES OF AMERICA, Plaintiff,

v.

STREETER FLYING SERVICE, INC. Defendant.

Civil No.

COMPLAINT

Plaintiff United States of America, by and through the United States Department of Justice and on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), alleges as follows:

JURISDICTION AND VENUE

1. This is a civil action instituted pursuant to Section 14(a)(5) of the Federal Insecticide, Fungicide and Rodenticide Act ("the Act"), 7 U.S.C. Section 136 1(a)(5), to recover a civil penalty assessed by the EPA against Defendant Streeter Flying Service, Inc., pursuant to on Accelerated Decision and Order issued on August 27, 1985. This Accelerated Decision and Order became the final order of the EPA in accordance with 40 C.F.R. Section 22.27(6) as Defendant did not file on appeal pursuant to 40 C.F.R. Section 22.30.

2. The Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Sub-Section 1331, 1345, and 1355 and pursuant to Section 16(c) of the Act, 7 U.S.C. Section 136n(c), which ++EP++

specifically vests the district courts of the United States with jurisdiction to enforce the Act.

Page 2

3. Venue is appropriate in this judicial district pursuant to 28 U.S.C. Sub-Section 1391(c) and 1395(a).

DEFENDANT

4. Defendant Streeter Flying Service, Inc. ("Streeter") is a corporation incorporated under the laws of the State of Iowa. At all times relevant to this case, Streeter was doing business in this judicial district.

CLAIM FOR RELIEF

5. On December 24, 1984, pursuant to Section 14(a)(3) of the Act, 7 U.S.C. Section 136 1(a)(3), and 40 C.F.R. Sub-Section 22.13-22.14(a), the EPA issued an Administrative Complaint and Notice of Opportunity for Hearing (the "Complaint") against Streeter. The Complaint charged Streeter with violating Section 12(a)(2)(G), 7 U.S.C. Section 136j(a)(2)(G), of the Act and proposed a civil penalty of five hundred dollars ($500.00).

6. The Complaint was duly served upon Streeter on December 26, 1984.

7. Streeter served an answer to the Complaint on January 22, 1985.

8. After submitting prehearing exchanges in accordance with Orders dated February 12 and March 21, 1985, Plaintiff served a Motion for Accelerated Decision and Order pursuant to 40 ++EP++ C.F.R. Section 22.20. ++EP++

Page 3

9. Streeter failed to file a response to the Motion as directed by an Order dated May 17, 1985.

10. On August 27, 1985 an Accelerated Order was entered finding that Streeter had violated the Act. The Order assessed a civil penalty of five hundred dollars ($500.00) against Streeter and ordered that payment be made within 60 days of the receipt of the Order.

11. Streeter did not appeal this Order in accordance with 40 C.F.R. Section 22.30. Accordingly, the decision became the final order of the EPA in accordance with 40 C.F.R. Section 22.27(c).

12. The EPA by letter dated November 6, 1985 reminded Streeter of the Order and requested payment. No payment was tendered.

13. The EPA by telephone call on May 12, 1986 again requested payment from Streeter. No payment was tendered.

14. Despite these attempts to collect the penalty of $500.00, Streeter has failed to comply with the terms of the August 27, 1985 Order and the judgment remains outstanding.

15. Where administratively assessed penalties cannot be collected, Section 14(a)(5) of the Act, 7 U.S.C. Section 136 1(a)(5) authorizes the Attorney General to recover such penalties by action in the appropriate United States district court.

WHEREFORE, Plaintiff United States of America prays that this Court:

(1) Grant payment for Plaintiff United States of America and against Defendant Streeter Flying Service, Inc. in ++EP++

the amount of $500.00, together with costs and interest from October 26, 1985, to the date the judgment is paid.

Page 4

(2) Grant such other relief as this Court may deem just and proper. Respectfully submitted,

/s/

ROGER J. MARZULLA

Acting Assistant Attorney General

Land and Natural Resources Division

Department of Justice

Washington, D.C. 20530

CHRISTOPHER HAGEN

United States Attorney

Southern District of Iowa

By:

Assistant United States Attorney

Southern District of Iowa

/s/Bruce Buckheit

Bruce Buckheit

Senior Attorney

Environmental Enforcement Section

Land and Natural Resources Division

Department of Justice

Washington, D.C. 20530

(202) 633-3900

OF COUNSEL

HENRY F. ROMPAGE

Office of Regional Counsel

U.S. Environmental Protection Agency - Region VII

726 Minnesota Avenue

Kansas City, KS 66101 ++EP++

GEORGE MONEY D/B/A ECONOMY PRODUCTS

DOC 02 OF 04

REQUEST FOR ENTRY OF DEFAULT AND JUDGMENT

07-85-C005

FIFRA

OTHER

19850925

19850925

NED065122087

ECONOMY PRODUCTS CO., INC.

OMAHA, NE

85-5-W

07

REQUEST FOR ENTRY OF DEFAULT AND JUDGMENT IN U.S. V. GEORGE MONEY, D/B/A ECONOMY PRODUCTS CO., INC.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA WESTERN DIVISION

UNITED STATES OF AMERICA Plaintiff,

v.

GEORGE MONEY, d/b/a ECONOMY PRODUCTS CO., INC., Defendant.

Civil No. 85-5-W

REQUEST FOR ENTRY OF DEFAULT AND JUDGMENT

To the Clerk of the United States District Court.

The defendant in the above entitled and numbered action has failed to appear, plead or otherwise defend as provided in the Federal Rules of Civil Procedure. Therefore you are requested to enter against the defendant default and judgment in the amount set forth in the attached affidavit.

This request and affidavit is sent to you in accordance with Rule 55(a) and (b) of the Federal Rules of Civil Procedure.

Richard C. Turner

United States Attorney

/s/ Christopher Hagen

Christopher D. Hagen

Assistant U.S. Attorney

115 U.S. Courthouse

Des Moines, Iowa 50309

Tel: 515/284-6257 ++EP++

GEORGE MONEY D/B/A ECONOMY PRODUCTS

DOC 01 OF 04

COMPLAINT

07-85-C005

FIFRA

OTHER

19850925

19850128

NED065122087

ECONOMY PRODUCTS CO., INC.

OMAHA, NE

85-5-W

07

U.S. V. GEORGE MONEY, D/B/A ECONOMY PRODUCTS CO., INC.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA WESTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,

v.

GEORGE MONEY, d/b/a ECONOMY PRODUCTS CO., INC., Defendant.

CIVIL NO 85-5-W

COMPLAINT

The United States of America, by its undersigned attorneys, and on behalf and at the request of the Administrator of the United States Environmental Protection Agency ("EPA"), brings this action against the above-named Defendant, and alleges as follows:

1. This is a civil action instituted pursuant to Section 14(a)(5) of the Federal Insecticide, Fungicide, and Rodenticide Act (the "Act"), 7 U.S.C. Section 1361(a)(5), to recover civil penalties imposed upon defendant George Money, trading and doing business as Economy Products Co., Inc., of Shenandoah, Iowa by EPA pursuant to (a) a Final Order issued on April 26, 1978 and (b) a Default Order issued on September 20, 1984. (Copies of the Final Order and the Default Order are attached hereto as Exhibits 1 and 2, respectively).

2. This court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Section 1331, 1345 and 1355 and Section 14(a)(5) of the Act, 7 U.S.C. Section 1361(a)(5). ++EP++

Page 2

3. Venue is appropriate in this judicial district pursuant to 28 U.S.C. Sub-Section 1391(b) and 1395(a).

4. Defendant, George Money is or has been president of, and has traded or done business as Economy Products Co., Inc., an Iowa Corporation which forteited its corporate rights and privileges on November 23, 1982.

5. Defendant George Money currently resides in Shenandoah, Iowa which is within the jurisdiction of this Court.

FIRST CLAIM FOR RELIEF

6. Paragraph 1-5 are incorporated herein by reference.

7. On June 8, 1977, pursuant to Section 14(a)(3) of the Act, 7 U.S.C. Section 1361(a)(3), EPA issued a Complaint and Notice of Opportunity for Hearing against Economy Products Co., Inc. The Complaint charged the defendant with violating sections 12(a)(1)(E), 7 U.S.C. Section 136j(a)(1)(E).

8. Following an adjudicatory hearing requested by George Money and attended by an officer of Economy Products Co., Inc. and representatives of EPA on October 6, 1977, an EPA administrative Law Judge issued an Initial Decision on November 29, 1977, assessing a total penalty of $1,350.00 against Economy Products Co., Inc. Defendant did not appeal the decision. This decision became final with a Final Order issued on April 26, 1978.

9. Under the terms of the Final Order the civil penalty was to be paid on or before July 6, 1978. Defendant has not paid the penalty. ++EP++

Page 3 SECOND CLAIM FOR RELIEF

10. Paragraphs 1-5 are incorporated herein by reference.

11. On July 13, 1984, pursuant to Section 14(a)(3) of the Act, 7 U.S.C. Section 1361(a)(3), and 40 C.F.R. Sub-Section22.13, 22.14(a), EPA issued a Complaint and Notice of Opportunity for Hearing against the defendant. The Complaint charged the defendant with violating Section 7 of the Act, 7 U.S.C. Section 136(e), and 40 C.F.R. Section 167.5(a) and 40 C.F.R. Section 167.2(f). In the Complaint, EPA sought a total civil penalty of $6720.00 for these violations. The Complaint was served upon the defendant on July 17, 1984.

12. Pursuant to 40 C.F.R. Section 22.15(a), defendant should have filed an answer to the Complaint within twenty (20) days of service thereof. Defendant did not respond at all to the Complaint.

13. After defendant failed to respond to the Complaint, EPA, pursuant to 40 C.F.R. Section 22.17(a), moved for a default order. A copy of the Motion for Default Order was served upon the defendant on August 30, 1984.

14. Pursuant to 40 C.F.R. Section 22.17(a), defendant should have responded to the Motion for Default Order within twenty (20) days after service thereof. Defendant did not respond at all to the Motion for Default Order.

15. A Default Order was issued on September 20, 1984 and served upon defendant's attorney, Kenneth Sacks of Council Bluffs, Iowa on October 15, 1984. The Default Order assessed a civil penalty of $ 6720.00 against the defendant. (Exh. 1). ++EP++

Page 4

16. Pursuant to 40 C.F.R. Section 22.17(a), the penalty assessed by the Default Order became due and payable sixty (60) days after the issuance of the Default Order (i.e. on November 19, 1984). To date, defendant has not paid the penalty.

WHEREFORE, plaintiff prays that the Court:

(1) Grant judgment for the plaintiff in the amount of $1,350.00, together with costs and interest from July 6, 1978 to the date the judgement is paid; and

(2) Grant judgement for the plaintiff in the amount of $6720.00, together with costs and interest from November 19, 1984 to the date the judgement is paid; and

(3) Grant such other relief as may be just and proper.

Respectfully submitted,

/s/ Henry Habicht

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

U.S. Department of Justice

Washington, D.C. 20530

RICHARD C. TURNER

United States Attorney

Southern District of Iowa ++EP++

Page 5

By:

/s/ Christopher Hagen

CHRISTOPHER HAGEN

Assistant United States Attorney

Southern District of Iowa

115 U.S. Courthouse

E. First and Walnut Street

Des Moines, Iowa 50309

/s/ B.G. Donohyue

BRIAN G. DONOHUE, Attorney

Environmental Enforcement Section

U.S. Department of Justice

10th & Pennsylvania Ave., N.W.

Washington, D.C. 20530

OF COUNSEL: HENRY F. ROMPAGE, Attorney U.S. Environmental Protection Agency Region VII 324 East Eleventh Street Kansas City, MO 64106 ++EP++

ROGER HARRIS, D/B/A B&R PEST CO.

DOC 03 OF 03

LETTER

07-85-C004

FIFRA

OTHER

19850515

19860421

MOD980851794

B&R PEST CONTROL

ST. JOSEPH, MO

85-6008-CV-SJ

07

LETTER, U.S. ROGER HARRIS D/B/A B&R PEST CONTROL

U.S. Department of Justice United States Attorney Western District of Missouri 549 United States Courthouse 811 Grand Avenue Kansas City, Missouri 64106 April 21, 1986

Carolyn Young U.S. Environmental Protection Agency 401 M Street, S.W. Washington, DC 20460

Re: U.S. v. Roger Harris

USAO # 8527000 Case No. 85-6008-CV-SJ

Dear Ms. Young:

In reference to the above-collection case, the address we have is 2733 Jackson, St. Joseph, MO 64507. A total of $600.00 has been collected on the $1,000 judgment. A demand letter went out to Mr. Harris at the above-stated address and no response has been received.

The following checks were made and the outcome of each are:

1. Directory assistance St. Joseph area was contacted for:

a. # of Roger Harris or D & R Pest Control and later for Joseph B. Harris.

2. The July 1985-July 1986 telephone book for St. Joseph:

a. # of Roger Harris, D & R Pest Control or anyone named Harris at the Jackson Street address.

3. After finding a Joseph B. Harris listed at 2733 Jackson, a call was made to 364-4202:

a. Person answered and said it was not the Harris residence and that he had had the number only a few months.

4. A check of the file showed a copy of a personal check with another number (233-3711) at the same address, so a call to that number was made:

a. Recording which said the number was no longer in service. ++EP++

We are closing our file at this time as uncollectible. If you are able to locate the debtor, you may refer this back to our office.

Sincerely yours,

ROBERT G. ULRICH

United States Attorney

By /s/ Judith M. Strong

Judith M. Strong

Assistant U.S. Attorney

Enclosure /cc ++EP++

ROGER HARRIS; D/B/A B&R PEST CO.

DOC 02 OF 03

JUDGMENT BY CONSENT

07-85-C004

FIFRA

OTHER

19850515

19850515

MOD980851794

B&R PEST CONTROL

ST. JOSEPH, MO

85-6008-CV-SJ

07

JUDGMENT BY CONSENT IN U.S. ROGER HARRIS, D/B/A B&R PEST CONTROL

IN THE UNITED STATES COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION

UNITED STATES OF AMERICA, Plaintiff,

vs.

ROGER HARRIS, d/b/a B&R PEST CONTROL, Defendant.

Civil No. 85-6008-CV-SJ

JUDGMENT BY CONSENT

A complaint and consent to judgment having been heretofore filed in the captioned cause agreeing to entry of judgment in favor of plaintiff and against defendant it is hereby

ORDERED, ADJUDGED and DECREED that judgment be entered in favor of the United States of America and against defendant in the principal amount of $1,000.00, plus interest at the statutory rate, which rate as of the date hereof is 9.15%, and, pursuant to 28 U.S.C. Section 1961(b), computed daily and compounded annually on the total from date of judgment until paid in full. It is further

ORDERED that the judgment as set out in the foregoing paragraph will be satisfied by defendant making monthly installment payments of $200.00 or more commencing May 1, 1985 and continuing on the 1st of each month thereafter until the judgment is paid in full or otherwise settled. So long as payments are timely made on the 1st of each month, plaintiff will not execute on the judgment. It is further ++EP++

ORDERED that execution on said judgment will be stayed so long as defendant Roger Harris continues to make monthly installment payments regularly as provided herein.

HOWARD F. SACHS

United States District Judge ++EP++

ROGER HARRIS, D/B/A B&R PEST CO.

DOC 01 OF 03

COMPLAINT

07-85-C004

FIFRA

OTHER

19850515

19850201

MOD980851794

B&R PEST CONTROL

ST. JOSEPH, MO

85-6008-CV-SJ

07

COMPLAINT IN U.S. ROGER HARRIS, D/B/A B&R PEST CONTROL

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION

UNITED STATES OF AMERICA, Plaintiff,

v.

ROGER HARRIS, d/b/a B&R PEST CONTROL, Defendant.

CIVIL NO.

COMPLAINT

The United States of America, by and through its attorney, Robert L. Ulrich, on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), and for its Complaint herein alleges as follows:

1. This is a civil action instituted pursuant to Section 14(a)(5) of the Federal Insecticide, Fungicide and Rodenticide Act (the "Act"), 7 U.S.C. Section 1361(a)(5), to recover a civil penalty imposed upon defendant, Roger Harris, trading and doing business as B&R Pest Control, by EPA pursuant to a Default Order issued on July 9, 1984. (A copy of the Default Order is attached hereto as Exhibit 1.)

2. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Sub-Section 1331, 1345 and 1355 and Section 14(a)(5) of the Act, 7 U.S.C. Section 1361(a)(5). ++EP++

Page 2

3. Venue is appropriate in this judicial district pursuant to 28 U.S.C. Sub-Section 1391(b) and 1395(a).

4. Defendant's business is in St. Joseph, Buchanan County, State of Missouri, which is within the jurisdiction of this Court.

CLAIM FOR RELIEF

5. On December 14, 1983, pursuant to Section 14(a)(3) of the Act, 7 U.S.C. Section 1361(a)(3), and 40 C.F.R. Sub-Section 22.13-22.14(a), EPA issued a Complaint and Notice of Opportunity for Hearing (the "Complaint") against the defendant. The Complaint charged defendant with two violations of Section 12(a)(2)(G) of the Act, 7 U.S.C. Section 136j(a)(2)(G), and proposed a civil penalty of $500 for each violation. The complaint was served upon the defendant on December 17, 1983.

6. Pursuant to 40 C.F.R. Section 22.15(a), defendant was required to file an Answer to the Complaint within twenty (20) days after service thereof. Defendant has not responded to the Complaint.

7. After defendant failed to respond to the Complaint, EPA moved for a default order pursuant to 40 C.F.R. Section 22.17(a). A copy of the Motion for Default Order was served upon defendant on June 7, 1984.

8. Pursuant to 40 C.F.R. Section 22.17(a), defendant should have responded to the Motion for Default Order within twenty (20) days after service thereof. Defendant has not responded to the Motion for Default Order. ++EP++

Page 3

9. A Default Order was entered on July 9, 1984, and served upon defendant on July 23, 1984. The Default Order assessed a civil penalty of $1,000 against the defendant (Exhibit 1).

10. Pursuant to 40 C.F.R. Section 22.17(a), the penalty assessed by the Default Order became due and payable on September 21, 1984. To date, defendant has not paid the penalty.

WHEREFORE, Plaintiff prays that the Court:

(1) Grant judgment for the Plaintiff in the amount of $1,000, together with costs and interest from September 21, 1984, to the date the judgment is paid;

(2) Grant such other relief as this Court may deem just and proper.

/s/Henry Habicht

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

U.S. Department of Justice

Washington, D.C. 20530

By:

Assistant United States Attorney

Western District of Missouri

549 United States Courthouse

811 Grand Avenue

Kansas City, Missouri 64106

(816) 374-3122 ++EP++

Page 4

/s/

BRIAN G. DONOHUE, Attorney

Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

10th and Pennsylvania Avenue, N.W.

Washington, D.C. 20530

OF COUNSEL:

Rupert G. Thomas, Attorney

Office of Regional Counsel

U.S. Environmental Protection Agency

Region VII

324 East Eleventh Street

Kansas City, Missouri 64106 ++EP++

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was mailed this day of January, 1985, to:

Roger Harris

B&R Pest Control

2733 Jackson Street

St. Joseph, Missouri 64507

Assistant United States Attorney

Western District of Missouri ++EP++

SEELHOFF AERIAL SPRAYING

DOC 02 of 02

ORDER AND JUDGMENT

08-87-C004

FIFRA

OTHER

19870824

19870924

COD069725620

SEELHOFF AERIAL SPRAYING

BURLINGTON, Co

87-C-367

08

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 87-C-367

UNITES STATES OF AMERICA, Plaintiff,

v.

RONALD SEELHOFF, d/b/a SEELHOFF AERIAL SPRAYING, Defendant.

ORDER AND JUDGMENT

Upon affidavit of counsel and request of the United States for entry of default and default judgment pursuant to Rule 55, Federal Rules of Civil Procedure, and it appearing that the Summons and Complaint herein was served on defendant on July 1, 1987; that no answer, or other pleadings have been filed and none served on the attorney for the plaintiff on behalf of the defendant; that the time for filing has expired; and it further appearing that the allegations in the Complaint are true and that plaintiff is entitled to judgment,

IT IS ORDERED, ADJUDGED AND DECREED that default be and hereby is entered;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the United States have judgment against the defendant, Ronald Seelhoff, d/b/a Seelhoff Aerial Spraying, for the sum of One Thousand Four Hundred Dollars ($1400.00) plus costs and interest at the current prevailing rate of 6.98% from this date until the judgment is paid in full.

DATED this 21 day of August 1987, Denver, Colorado.

/s/

UNITED STATES DISTRICT JUDGE ++EP++

UNITED STATES DISTRICT COURT Office of the Clerk DISTRICT OF COLORADO

JAMES R. MANSPEAKER, Clerk

ROOM C-145

UNITED STATES COURTHOUSE 1929 STOUT STREET

DENVER, COLORADO 80294

PHONE (303) 837-3433

FTS 327-3433

August 24, 1987

William G. Pharo, Esq

Assistant U.S. Attorney

Robert L. Hines, Esq

Environmental Enf. Sec.

Land and Natural Res. Div.

U.S. Dept of Justice

10th and Pennsylvania Ave. NW

Washington, DC 20530

Ronald Seelhoff

575 8th St.

Burlington, CO 80807

Re:

Please find enclosed a copy of Order and Judgment dated August 21, 1987 entered in the above matter.

JAMES R. MANSPEAKER, Clerk

By: /s/

Deputy Clerk ++EP++

SEELHOFF AERIAL SPRAYING

DOC 01 OF 02

COMPLAINT

08-87-C004

FIFRA

OTHER

19870824

19860828

COD069725620

SEELHOFF AERIAL SPRAYING

BURLINGTON, Co

87-C-367

08

UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

UNITED STATES OF AMERICA, Plaintiff,

vs.

MR. RONALD SEELHOFF, d.b.a. SEELHOFF AERIAL SPRAYING Defendant.

Civil Action NO.

COMPLAINT

The United States of America ("Plaintiff"), at the request of the Administrator of the Environmental Protection Agency ("EPA"), alleges the following:

INTRODUCTION

1. This is a civil action under Section 14(a)(5) of the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. Section 1361 (a)(5), brought to collect a penalty assessed by John G. Welles, Regional Administrator, Region VIII, United States Environmental Protection Agency (the "Administrator"). The Administrator assessed the penalty via a civil administrative action instituted pursuant to the authority vested in him by Section 14(a) of FIFRA, 7 U.S.C. Section 1361(a). ++EP++

Page 2 JURISDICTION AND VENUE

2. The court has jurisdiction over the subject matter of this action pursuant to Section 16(c) of FIFRA, 7 U.S.C. Section 136n(c) and 28 U.S.C. Sub-Section 1331, 1345, and 1355.

3. Venue is proper in the Court pursuant to 28 U.S.C. Sub-Section 1391(b) and 1395(a).

DEFENDANT

4. At all times relevant to this complaint, Ronald Seelhoff ("Defendant") has owned Seelhoff Aerial Spraying, located at Burlington Airport, Burlington, Colorado 80807. Defendant is a certified commercial applicator of pesticide, agricultural plant category.

5. Defendant is a "person" as that term is defined in Section 2(s) of FIFRA, 7 U.S.C. Section 136(s).

GENERAL ALLEGATIONS

6. On December 19, 1984, the Administrator brought a civil administrative action against defendant based on alleged violations of Section 12(a)(2)(G) of FIFRA, 7 U.S.C. Section 136j(a)(2)(G) (use of a registered pesticide in a manner inconsistent with its labelling), as well as based on Defendant's alleged failure to abide by the record keeping requirements of 40 C.F.R. Section 171.11(c)(7) during July and August 1984. A true and correct copy of that complaint is attached as Exhibit A and incorporated herein by reference. ++EP++

Page 3

7. Pursuant to Section 14(a) of FIFRA, 7 U.S.C. Section 1361(a), the Administrator proposed to assess a penalty of Two Thousand Three Hundred dollars ($2300) against Defendant.

8. On March 19, 1985, Defendant entered into a Consent Agreement whereby he admitted the allegations of the Administrative Complaint, waived his right to a hearing as provided by Section 14(a)(3) of FIFRA, 7 U.S.C. Section 1361(a)(3), and agreed to the assessment of a penalty in the amount of Two Thousand dollars ($2000) to the United States Government. A true and correct copy of that Consent Agreement is attached as Exhibit B and incorporated herein by reference.

9. Following submission to the Administrator, the Consent Agreement was incorporated into a Final Order on March 27, 1985. A true and correct copy of the Final Order is attached as Exhibit C and incorporated herein by reference.

10. After Defendant was offered the option of making staggered payments to satisfy the Two Thousand dollar ($2000) penalty, Defendant remitted Two Hundred Fifty dollars ($250) as partial payment on or about July 24, 1985.

11. When Defendant failed to adequately respond to subsequent letters from the Environmental Protection Agency's assistant regional counsel for Region VIII, final demand for payment was made for the Seventeen Hundred and Fifty dollar ($1750) balance of the civil penalty on September 11, 1985.

12. Defendant subsequently paid Two Hundred Fifty dollars ($250) on or about September 22, 1985, and One ++EP++

Hundred dollars ($100) on or about October 7, 1985. To date, EPA has repeatedly requested but Defendant has failed to make any additional payments toward the Fourteen Hundred dollars ($1400) balance, and has refused to sign a number of payment agreements with a variety of installment payment schedules.

13. Section 13 of FIFRA, 7 U.S.C. Section 1361 provides in part as follows:

(a) Civil Penalties-

(5) Reference to Attorney General.-- In case of inability to collect such civil penalty or failure of any person to pay all, or such portion of such civil penalty as the Administrator may determine, the Administrator shall refer the matter to the Attorney General, who shall recover such amount by action in the appropriate United States district court.

CLAIM FOR RELIEF

14. Paragraphs 1 through 13 are incorporated herein by reference.

15. Defendant has failed to pay the Fourteen Hundred dollar ($1400) balance due on the civil penalty assessed in the FIFRA Administrative Consent Agreement and Final Order, Docket No. I.F.& R. VIII - 137C entered on March 28, 1985. (Exhibits B and C hereto).

16. Pursuant to Section 14(a)(5) of FIFRA, 7 U.S.C. Section 1361(a)(5), Defendant is subject to the entry of judgment in the amount of Fourteen Hundred dollars ($1400) plus interest at current prevailing rates. ++EP++

WHEREFORE, the United States of America requests that the court grant the following relief:

Page 5

1. Enter Judgment against Defendant in the amount of Fourteen Hundred dollars ($1400) and order Defendant to comply with the terms of the Consent Agreement and Final Order and pay to the Treasurer of the United States of America, P.O. Box 360748M, Pittsburgh, Pennsylvania 15251, by cashier's check or certified check, the amount of Fourteen Hundred dollars ($1400);

2. Award the United States of America its costs and attorneys' fees in this action; and,

3. Award the United States of America such other relief as the court may deem just and proper.

Respectfully submitted,

/s/

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

U.S. Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Robert N. Miller

United States Attorney

District of Colorado

1961 Stout Street, Suite 1200

Federal Office Bldg., Drawer 3615

Denver, Colorado 80294

/s/

William G. Pharo

William G. Pharo

Assistant United States Attorney

District of Colorado ++EP++

Page 6

/s/

Robert L. Hines

ROBERT L. HINES

Attorney

Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

Washington, D.C. 20530

OF COUNSEL:

Jane Gardner

Assitant Regional Counsel

Region VIII

U.S. Environmental Protection Agency

1 Denver Place

999 18th Street, Suite 1300

Denver, Colorado 80202-2413 ++EP++

MIBAR INC

DOC 01 OF 01

CONSENT DECREE

08-86-C004

FIFRA

OTHER

19860530

19860530

COD099914905

MIBAR

DENVER, CO

86-K-1074

08

CONSENT DECREE for U.S. v. MIBAR, INC.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

UNITED STATES OF AMERICA Plaintiff,

v.

MIBAR, INCORPORATED, a Colorado Corporation, and Michael Levine, Individually, Defendants.

CONSENT DECREE

WHEREAS, United States of America, on behalf of the United States Environmental Protection Agency ("EPA"), has filed a complaint alleging violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. Section136, et seq., requesting permanent injunctive relief; and

WHEREAS, Defendants MIBAR, Inc. and Michael Levine have not admitted any of the allegations of the complaint of the United States; and

WHEREAS, Plaintiff and Defendants having agreed that settlement of this action is in the public interest and that entry of this Consent Decree without further litigation is the most appropriate means of resolving this action;

NOW THEREFORE, before the taking of any testimony, upon the pleadings, without adjudication of any issue of fact or law, and upon consent and agreement of the parties to this Consent Decree, it is hereby Ordered, Adjudged, and Decreed as follows: ++EP++

Page 2 I. JURISDICTION

This Court has jurisdiction over the subject matter of this action and the parties consenting to this Consent Decree under 28 U.S.C. Sub-Section1331, 1345, and under 7 U.S.C. Section136n. Venue is proper in this Court pursuant to 28 U.S.C. Section1391. The Complaint states a claim upon which relief may be granted against the Defendant.

II. DEFINITIONS

1. "Defendants" shall mean Defendant MIBAR, Inc. and Defendant Michael Levine (hereinafter jointly referred to as MIBAR).

2. The term "facilities" shall mean the real property, buildings, and appurtances thereto at 775 South Jason Street, Denver, Colorado.

3. Terms used in this Consent Decree are defined in 7 U.S.C. Section136, 40 C.F.R. Parts 162 and 167 and shall have the meanings contained therein.

III. PARTIES

1. Defendant MIBAR, Inc. is a corporation organized under the laws of and authorized to do business in the State of Colorado. Defendant Michael Levine is a person residing in the State of Colorado and is the president of and principal shareholder in MIBAR, Inc.

2. The Defendants are "persons" within the meaning of Section 2(s) of FIFRA, 7 U.S.C. Section136(s).

IV. APPLICABILITY

1. This Consent Decree applies only to the cause of action raised in the civil complaint filed by the United States, herewith. ++EP++

Page 3

This Consent Decree does not release Defendants MIBAR, Inc. and Michael Levine from liability in connection with violations of FIFRA at other times and at other locations, or for violations not yet discovered. This agreement will resolve only the United States' civil claims for injunctive relief under FIFRA for the violations alleged in the complaint filed herewith. Civil penalties, if any, for those violations will be resolved initially through EPA administrative processes. The United States reserves its right to commence an action or to seek further relief in this action to collect such penalties, if any.

2. The undersigned representative of each party to this Consent Decree certifies that he or she is fully authorized by each party whom he or she represents to enter into the terms and conditions of this Consent Decree, and to execute and legally bind that party to it.

3. The provisions of this Consent Decree shall apply to and be binding upon the Defendants, as well as MIBAR's officers, directors, agents, servants, employees, successors, and assigns, and all persons, firms and corporations having notice of this Consent Decree and who are, or will be, acting pursuant to this Consent Decree, or on behalf of, in concert or in participation with Defendants to this action in furtherance of this Consent Decree. The Defendants shall provide a copy of this decree to any successors in interest and shall provide prior notice to EPA of any proposed sale of MIBAR, Inc. during the life of this decree.

V. PERMANENT INJUNCTION

1. The Defendants are permanently enjoined from violating FIFRA at this or any other facility or business enterprise.

2. Defendants shall not engage in the production of pesticides, including but not limited to formulation and repackaging of pesticides, until it is properly registered with EPA as a producer.

3. Defendants shall not distribute pesticides or pesticide products without a proper registration or subregistration number.

4. Defendants shall not repackage pesticides or pesticide products without a proper subregistration number and a repackaging agreement with the primary registrant. ++EP++

Page 4

5. A representative of Defendant MIBAR shall certify the proper formulation of every batch of pesticides or pesticide products repackaged by Defendants;

6. Defendants shall submit to EPA letters from the primary registrant of each pesticide distributed by MIBAR, approving MIBAR's right to use the product, no later than 48 hours from the date of entry of this decree;

7. Defendants shall provide to EPA within one week of entry of this Decree, a copy of all invoices for pesticides or pesticide products sold by MIBAR or purchased by MIBAR within the past year and shall continue to provide such records to EPA on a quarterly basis during the life of this decree;

8. Defendants shall recall all off-specification products and any product for which MIBAR does not have a registration number which were distributed or sold within the last year. The recalls shall commence within two (2) weeks from the date of this Consent Decree or date of notification by EPA that a product is off-specification, whichever comes later, and shall be completed not more than two months after initiation of the recall;

9. MIBAR shall maintain and file with EPA production reports as required by 40 C.F.R. Part 169.2;

10. A MIBAR representative shall certify for EPA that any siphons, funnels, or other implements used for repackaging pesticides are triple rinsed between use and that siphons used to formulate pesticides are not used to transfer other materials, including but not limited to, soaps and food supplements;

11. Defendants shall maintain disposal records as required by 40 C.F.R. Part 169.2(i) and, for the life of this decree, shall provide those records to EPA on a quarterly basis.

12. Defendants shall dispose of the 7-10 drums located at the front of its facility within two (2) weeks from the date of this agreement, and in accordance with all Federal, State, and local laws, and shall promptly thereafter provide documentation of proper disposal of those drums to EPA;

13. Defendants shall permit EPA full access to MIBAR's facility during reasonable hours for the purpose of ensuring compliance with this agreement. EPA's right of access shall not be dependent on Michael Levine being present at the facility;

14. Defendant shall correct all label misbranding. ++EP++

Page 5 Page Deliberately Left Blank ++EP++ UNITED STATES DISTRICT COURT, DISTRICT OF COLORADO JAMES R. MANSPEAKER, CLERK C-145 U. S. Courthouse 1929 Stout Street Denver, Colorado 80294 (303) 844-3433

Date: May 30, 1986

Case No. 86-K-1074

The undersigned hereby certifies that on the above date a copy of Consent Decree signed by Judge John L. Kane, Jr. on May 30, 1986 was mailed to the following:

Henry Solano, Esq.

Asst. U. S. Attorney

1200 Federal Office Bldg.

Denver, CO 80294

Michael Levin, President

MIBAR, Inc.

775 S. Jason St.

Denver, CO 80223

F. Henry Habicht II, Esq.

Asst. Attorney General

Lan and Natural Resources Division

U. S. Dept. of Justice

Washington, DC 20530

Richard Mays, Esq.

U. S. Environmental Protection Agency

401 M St., SW

Room 1037 W. Tower

Washington, DC 20460

Jane Gardner, Esq.

Asst. Regional Counsel

U. S. Environmental Protection Agency

999 - 18th St., #1300

Denver, CO 80202

James R. Manspeaker, Clerk

By: /S/ (ILLEGIBLE)

Alan R. Case, Deputy Clerk ++EP++