8. Complaint Counsel did not search Matthew Wilshire’s files because, other than
assisting with the response to ECM’s sanctions motions, Mr. Wilshire had no involvement in the
investigation or prosecution of the ECM matter.

Executed this 27th of March, 2014 in Washington, D.C.

the in
Complaint Counsel



Test materials

| Compostability Anaerobic digestion Soil incubation

Additives PP + 2% ECM® x X Xx

PETE + 1% EcoPure® xX xX

g Ecotainer® xX x X

— Ecobras® xX x

| 2 — OP-47 x
| = PHA x
Paper + soy wax xX xX

3 Paper + asphalt 4

= Coconut coir xX

g Rice hull Xx

z Cow Pot® x

Peat Pot® xX

Table 1. Description of test materials. Note: PP: Polypropylene, PETE: Polyethylene Terephthalate, PHA:
Polyhydroxyalkanoate (PHA).

BL IE L:D-XO
LNSWNSO” OI8Nd



vb 32 L:O-XO

Background
SS

~~
INTERNATIONAL. ay,

Biodegradable Products institute, NY, US.

¥+
The Science of Biodegradation

“There ts some confusion ‘and disagreement about the term “biodegradable.”

Some-unscrupulous: manufacturers label ‘products as “biodegradable” or
“compostable” when; in fact, they:-are:only partially so,

hitp://www.bpiworld.org/science-of-blodegradation

degradable plastic, a—a plastic: designed to utslergo-w sig-
milicant: change: im. \te- chemical ‘structure: under xpecific
environmental conditions teaalting tv i oss of some prop
erties that may vary as mensured by standard test methods
‘@ppropnule te tbe plastic and the applicalion wn a-penod of
‘time’ that determines ils classification. (1991)

3.4.1 biodegradable plastic—a degradable plastic in which
the degradation results from the action-of naturally occurring
microorganisms suchas: bacteria, fungi, and algae.

¥

ALN3WNDSO0 ONENd



£7328 F:D-XO

Understanding the data

60%

50% Cc evolved from sample

40%

30%

Biodegradation

20%

10% ~ Cevolved from negative control ?

0%

i) 50 100

Time (day) x

total amount of sample carbon added

w=

Figure 6. Example of cumulative carbon loss (CO2-C) as the percentage of initial carbon.

LN3WNDO0"0 DI18Nd



Complaint Counsel
Exhibit A

CX-A



62 38 L:O-XO

Biodegradation of Bioplastics and Natural Fibers during
Composting, Anaerobic Digestion and in Soil

Thanks for your Attention

LNaWn90d 9NENd



PUBLIC DOCUMENT

From: Wilshire, Matthew

To: Pessolano, Kathleen

Subject: FW: Composting and bioplastics

Date: Friday, November 16, 2012 3:14:00 PM.

Attachments: gomezmichelorbit2012drafi2fcm.pdt
AEESDegradationDraft2Gomez (2).pdf

Matthew J. Wilshire

Federal Trade Commission

Bureau of Consumer Protection, Division of Enforcement
Direct Dial: 202-326-2976

From: Michel, Frederick [mailto:michel.36@osu.edu]
Sent: Friday, November 02, 2012 10:39 AM

To: Wilshire, Matthew

Subject: Composting and bioplastics

Matthew,

Good to talk to you today. Attached is a recent paper | presented at the Organics Recycling and
Biological Treatment (ORBIT) symposium in Rennes France last June and a powerpoint my student
Eddie Gomez presented at the 2012 EcoSummit in Columbus. We are working on a couple of
manuscripts based on this work to be submitted soon.

Regards,

Fred Michel

“te “+ + mbotebtobtetetetobebbetett
Frederick C. Michel Jr., PhD
Associate Professor of Biosystems Engineering
Department of Food, Agricultural and Biological Engineering
The Ohio State University-OARDC
1680 Madison Ave.
Wooster, OH 44691
@ 330.263.3859
& 330.263.3788
BS michel. 36@osu.edu
4 - a C R

Editor, Compost Science and Utilization journal

www. jgpress.com/compostscience/index.html

Associate Editor, Biological Engineering Division, ASABE

www.asabe,org/pubs/index.htm|

President, Wayne County Sustainable Energy Network
www,wesen.org

CX-C:1 at 1



Methodology
PERE PU

OQ Three independent replicates were used for each treatment.
Oo Bench-scale experiments were conducted.
oO Positive and negative controls used were cellulose paper and polypropylene, respectively.

oO All materials were cut into 1 cm squares and tested based on ASTM international standard
test methods.

a Methods:

- Compostability: ASTM D5338-98(2003). 120 days.
Soil incubation: ASTM D5988-03. 550 days.
Anaerobic digestion: ASTM D5511-02. 50 days.

Oo The percent biodegradation was calculated:

Of = Cevowed from samoteTM Cevotved from necative control

total amount of sample carbon added

i)
x
2
3
=

LNAWNSO"0 9NaAd



PUBLIC DOCUMENT

I. ECM?’s Motion to Exclude the Ohio State Study Based on Inadvertent Late
Disclosure Lacks Merit.

Second, ECM argues that Complaint Counsel improperly withheld the Ohio State Study
for more than a year.* In doing so, ECM ignores the fact that Dr. Michel provided the study to
the FTC in the course of an entirely different matter. It also misstates the law, erroneously
suggesting that Complaint Counsel has an obligation “to distribute discovery requests to all
employees and agents of... the FTC.” See Third Motion to Exclude (Mar. 20, 2014) at 5 (citing
Nat'l Assoc. of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556 (N.D. Cal. 1987).
Significantly, the case ECM relies on involved federal court litigation rather than administrative
litigation under the FTC’s Rules. Indeed, Rule 3.31 makes clear that “[c]omplaint counsel need
only search for materials that were collected or reviewed in the course of the investigation of the
matter or prosecution of the case and that are in the possession, custody or control of the Bureaus
or Offices of the Commission that investigated the matter, including the Bureau of Economics.”
16 CER § 3.31(0)(2).

Here, although a draft of the study was received by an FTC attomey on November 2,
2012, it was received in conjunction with a search for experts in two entirely unrelated
investigations, see CX-A {ff 3-4, it was not known to Complaint Counsel prior to February 14,
2014, CX-B 3, and it was not used in the investigation or prosecution of the ECM matter prior
to that time, id. at {4. Furthermore, Complaint Counsel’s lack of knowledge about the existence
of this document was entirely justified. Specifically, because Mr. Wilshire — who received the
document from Dr. Michel — had no involvement in the investigation or prosecution of ECM, his

files were not searched. CX-A 5; CX-B J 8.° Ms. Pessolano, who left the agency ten months

5 ECM’s argument is wrong, but ECM asserts it anyway at least partly to divert attention
from its obstructionist approach to discovery that caused months of delay with respect to core
issues — including ECM’s belated document production, ECM’s refusal to disclose a customer
list, and ECM’s two failed motions to limit Complaint Counsel’s ability to contact its customers.

° One of these matters, In re gDiapers, resulted in a public complaint. As is evident from
the complaint in that matter, the issue in gDiapers involved primarily claims of biodegradability
in a composting (aerobic) environment — as opposed to biodegradability in a landfill (which is an
anaerobic environment). The other matter also involved primarily composting (aerobic) claims.

5



Waste generation in the U.S.
AS SN Ae

Recycled
8%

138 L:O-XO

Figure 1. Waste generation in the U.S.

~ ANaIWNDOG OMaNd



Complaint Counsel
Exhibit C

CX-C



PUBLIC DOCUMENT

Biodegradation of Bioplastics and Natural Fibers during Composting, Anaerobic Digestion and in Soil
Eddie Gémez’, Frederick C. Michel?”

Various plastic and natural materials have recently begun to be marketed that claim to biodegrade or compost during
waste treatment (Song et al., 2009). These materials include conventional plastics amended with additives that are
meant to confer biodegradability or compostability as well as plastics made from biopolymers, and natural fiber based
materials. However, there is limited information about the extent or rate of biodegradation of these materials. There is a
need to develop novel materials that are designed to fully or partially degrade under different conditions, including soil,
composting and anaerobic digestion (AD); the latter mimics landfilling. Advantages of biodegradable materials include
the increase in the economic feasibility of the landfill or anaerobic digestors due to methane gas collection for
bioenergy production and volume reduction of the waste due to biodegradation during the active life of the of the
system (International, 2011). One of the most pressing questions is whether the “biodegradable” plastics and natural
fibers available in the market truly degrade. There is a lack of scientific information supporting the claims made by
“novel” materials developers.

Whereas some research has focused on the degradation of specific biopolymers and natural fibers that are used to
produce bioplastics (Hanley et al., 2000; Ishigaki et al., 1999; Woolnough et al., 2010) there is lack of information on
how the “novel” materials that are available in the market will degrade after incorporation into products or under
conditions found during waste management or environmental release. These degradation rates are particularly important
to studies quantifying the impact of specific products and processes on different environments. The overall objective of
this study was to determine the biodegradability of a wide range of materials and additives claiming to be biodegradable
or to confer biodegradability to conventional plastics.

2 METHODOLOGY

Laboratory-scale experiments were conducted to study the biodegradability of plastics under soil incubation,
composting, AD conditions. The percent biodegradation was calculated by measuring the average carbon dioxide (CO2)
evolved from each treatment, subtracting this from the average CO2 evolved from negative controls, and dividing this
by the total amount of sample carbon added to each treatment. All materials were cut into 1 cm squares and tested based
on ASTM international standard test methods,

24 Experimental procedure

The compostability of bioplastics samples was determined based on ASTM D5338-98(2003) (International, 2003b).
The test determines the percent of carbon in the plastic material that was converted to CO, during the course of a
composting experiment that mimics the temperature and aeration conditions during full scale commercial composting.
Each bioplastic sample (80 g dry) was mixed with a compost inoculum (350 g dry) and the moisture content of the
mixture was adjusted to 60% using deionized water. On a wet-weight basis, each vessel contained approximately 1100
g of material. :

The compost inoculum was obtained from the Ohio Research and Development Center (OARDC) composting site. This
is a full scale windrow composting facility featuring a concrete composting surface and a built in aeration system. The
compost contained a mixture of dairy manure and hardwood sawdust (Michel et al., 2004). Compost was then screened
to less than 10 mm and large inert items were discarded. Compost was amended with ammonium phosphate to give an
overall C:N of 20:1 (by weight), including carbon contained in the test material. Composting was performed using a
bench scale reactor system featuring 18, 4-liter capacity reactors placed in an incubator set at 55°C. To maintain aerobic
conditions, regulated humidified air at a -40°C dew point entered the vessels at a rate of 100 ml/min (Grewal et al.,
2006). Air was exhausted at the top of the vessels through tubes attached to an air outlet and bubbled through flasks in a
separate water bath set at 9°C to condense moisture from the off-gas. The off-gas was then analysed for percent CO,
(Vaisala model GMT 220, range 0 to 20%). Data was automatically recorded on a Campbell Scientific model 23XL
data logger for each vessel every hour. Each vessel was also equipped with a K-type thermocouple to measure
temperature in the mix near the middle of the compost, and data will be recorded automatically every 12 min. The
experiments were conducted over a period of 110 days.

The anaerobic digestion study determined the degree and rate of conversion of plastic materials to CO2 and CH, during
incubation under anaerobic conditions based on ASTM D5511-02 (International, 2002). For this study test materials ,

ORBIT2012 2
CX-C:1 at 4



Complaint Counsel
Exhibit C
Attachment 1

CX-A:1



PUBLIC DOCUMENT

CX-C.



Complaint Counsel
Exhibit B

CX-B



Dated: March 28, 2014

10

PUBLIC DOCUMENT

Respectfully submitted,

Johnson (kjohnson3@ftc. gov)
Cohen (jcohen2@fic. gov)
Elisa Jillson (ejillson@ftc.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B
Washington, DC 20580

Phone: 202-326-2185; -2551; -3001
Fax: 202-326-2551



Understanding the project

a Development of our own biodegradable material.
Understanding the factors affecting bioconversion.

S

oO Compare all products by means of a complete Life Cycle
Assessment study. ls recycling of plastics better for the
environment than biodegradables?

OL 38 L:O-XO

LNAWNDSO" OI1aNd



PUBLIC DOCUMENT
Biodegradation of Bioplastics and Natural Fibers during Composting, Anaerobic Digestion and in Soil
Eddie Gémez*, Frederick C. Michel**

80% Positive

a Ecotec

——or470

OM PETE + 1% EooPure®

% of initial cumulative C lost (CO2-C)
& 8
RF
ae
| ES

30% 4 PP + 2% ECM
me Paper + asphalt
20%
er Cocomt coir
10%
Oo Rice ll
% eB Cow Po
om Peat Pow

Time (day)

Figure 2. Cumulative carbon loss (CO2-C) during soil incubation as the percentage of initial carbon (£SD) over time.
For some data points SD bars are smaller than markers.

Four materials were tested under anaerobic digestion conditions (Fig. 3). The positive control used was cellulose paper.
‘The initial rate of degradation was highest for Ecotainer® and Ecobras® samples. The rate of degradation was steady
through day 30 for these two samples and appeared to slow somewhat after this period. Final values for Ecotainer® and
Eedbras® were of 26.4+8.0 and 20.246.7% over a 50 day period in an anaerobic environment, respectively. For
treatments containing PP and PETE amended with additives, no significant degradation was observed over the period of
study. Statistical analyses revealed that differences between Ecobras and Ecotainer were not significant.

90%
G 80% }-
3
g 10%
2 wm —— Posive
Soom Va er PP +2% ECMD
5 A oe

40%
5 VA ‘=D PETE + 1% EcoPure®
= 30% +- J
E ~~

20%
3
S 10% j

m ‘a ie ral

0 5 lo 1S SS SSD

Time (day)

Figure 3. Cumulative carbon loss (CO,-C) during anaerobic digestions as the percentage of initial carbon (SD) over
time. For some data points SD bars are smaller than markers.

4 CONCLUSION

Although certain biopolymers and natural fibers appear to biodegrade to an appreciable extent during composting,
anaerobic digestion and soil incubation, none degrade at the same rate or to the same extent as positive controls.
Therefore, none met ASTM standards for biodegradability or compostability. Conventional plastics containing additives
that are marketed to improve biodegradability did not biodegrade differently than non-additive containing plastics and
neither biodegraded to an appreciable extent.

ORBIT2012 5
CX-C:1 at7



PUBLIC DOCUMENT

I. The Sanctions ECM Seeks are Unwarranted.

As this Court has recognized, sanctions must be “reasonable in light of the material
withheld.” Order (Mar. 11, 2014) at 3 (citations omitted). The chief sanction ECM seeks — the
exclusion of the Ohio State Study — is extraordinary and unwarranted on these facts. To begin,
unlike most discovery disputes, the Ohio State Study is a published study that is publicly
available — a fact that mitigates harm from a late production. Furthermore, as the Court is aware,
Complaint Counsel already proposed a mutual extension of the fact discovery deadline. See
Motion (Mar. 18, 2014).

Moreover, even if ECM could articulate some theory of harm (which it cannot), courts
have refused to exclude evidence where a failure to produce was inadvertent. See In re OSF
Healthcare Sys., No. 9349, 2012 WL 861973, at *3-4 (Mar. 2, 2012); accord Order (Feb. 4,
2014) at 5 (declining to bar respondents from pursuing certain defenses as a sanction for refusal
to answer an interrogatory for five weeks and holding that a full answer to the interrogatory
constituted a “just” remedy); Order (Mar. 11, 2014) at 2 (denying sanctions where most of the
requested discovery was provided and Respondents committed to complete production). ECM

has cited to no cases indicating otherwise and, indeed, the cases it does cite are inapposite.'*

3 Tn contrast, ECM proposes only a unilateral extension.

14 As discussed below, Benitz-Garcia, Bonds, and Batson involved whether dismissal of a
case was proper for discovery violations and concluded that it was not. In Moore v. Chicago,
2006 WL 1710234, at *11-12 (N.D. Ill. June 14, 2006), the court imposed fees as a sanction
rather than dismissal. Similarly, Turnage involved the imposition of fees, additional discovery,
and a special master to oversee discovery as a sanction. 115 F.R.D. at 558-61. In Republic of
China v. Nat’l Union Fire Ins. Co., 142 F. Supp. 551, 556-57 (D. Md. 1956), the court refused to
impose sanctions where the government’s refusal to answer an interrogatory would have been.
prejudicial to foreign relations. Further, HUD v. First Source Financial, 2007 WL 3173360, at
43, *5, *7 (H.U.D. Oct. 12, 2007), involved a default judgment against the respondent for failure
to participate in discovery or defend the action at all and Jn re Somerson, 2003 WL 22855212, at
*1-2, *5 (D.O.L. Nov. 25, 2003), involved dismissal of a complaint alleging wrongful
termination where the complainant, among other things, sent harassing and threating e-mails to
witnesses. Finally, ECM cites In the Matter of Basic Research, 2005 WL 3524918, *2-3 (F.T.C.
Nov. 22, 2005) for the assertion that “[s]anctions for the discovery violations present here are
warranted.” See Third Motion To Exclude at 4. However, Basic Research involved a very
different situation involving Complaint Counsel’s alleged failure to comply with expert
disclosure requirements — and, in any event, the Court denied the sanctions motion. See Basic
Research, 2005 WL 3524918, at *3 (denying sanctions based on Complaint Counsel’s “sworn
declaration certifying that Complaint Counsel was not aware that Heymsfield was listed as a co-

7



PUBLIC DOCUMENT

before the Complaint, received the Ohio State Study in connection with her duties on these
unrelated matters.!° CX-C ]2. Furthermore, when Ms. Pessolano left the agency, she archived
all of her e-mails and electronic files from the ECM investigation and turned over paper files to
Ms. Johnson. CX-B J 6; CX-C 44. These files were searched upon receipt of ECM’s First
Document Request. CX-B 7. Because Ms. Pessolano did not realize the relevance of the study
to the ECM investigation,” she did not show it to Ms. Johnson or copy it to the ECM
investigative file’? CX-C 3, which is why Complaint Counsel did not identify it.

Further, once we discovered that attorneys at the FTC had previous contact with Dr.
Michel, Complaint Counsel immediately informed Respondent’s counsel and the Court.
Complaint Counsel then searched the files of the unrelated matters and produced documents
responsive to ECM’s First Document Request. CX-B 7. We also began producing documents
responsive to Requests 1 and 3 of ECM’s Second RFPD on March 18, 2014 — almost two weeks
before our response is due. Simply put, Respondent has put forth no evidence to support its
allegations that Complaint Counsel disregarded its discovery obligations. The evidence shows
that, at most, the late production of the article was inadvertent. In such circumstances, this Court
has declined to impose sanctions. Jn re OSF Healthcare Sys., No. 9349, 2012 WL 861973, at
*3-4 (Mar. 2, 2012).

10 Notwithstanding the fact that it involved a separate investigation, we disclose Mr.
Wilshire’s email forwarding the draft study to Ms. Pessalano solely to end ECM’s speculation
that Ms. Pessalano somehow received it in connection with this case — she did not. We reserve
our right to limit our search for responsive materials in accordance with 16 C.F.R § 3.31(c)(2).
See supra at 5.

u Significantly, Ms. Pessolano received a draft journal article that did not reference ECM
in the “Executive Summary,” or otherwise until page four. See RX-A. Ms. Pessolano does not
recall reviewing the document. CX-C 43. Had she realized it concerned ECM, consistent with
her standard practice, she would have forwarded it to Ms. Johnson. See id.

2 Assuming, arguendo, that Ms. Pessolano should have recognized its relevance and
forwarded it to Ms. Johnson, the oversight was entirely inadvertent and de minimis. In contrast,
ECM has conducted a calculated, months-long stonewalling campaign involving, among other
things, the delay of its entire document production and its refusal to disclose a customer list.

6



UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

)
In the Matter of )
)
ECM BioFilms, Inc., ) Docket No. 9358
a corporation, also d/b/a )
Enviroplastics International ) PUBLIC DOCUMENT
) ORAL ARGUMENT REQUESTED

DECLARATION OF KATHERINE JOHNSON
IN OPPOSITION TO ECM’S SECOND AND THIRD MOTIONS TO EXCLUDE
THE OHIO STATE STUDY

In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury that the
following is true and correct:

1. Tam over 18 years of age, and I am a citizen of the United States. I am employed
by the Federal Trade Commission (“FTC”) as an attorney in the Division of Enforcement in the
Bureau of Consumer Protection. I am an attorney of record in the above-captioned matter, and I
have personal knowledge of the facts set forth herein.

2. Lhave been lead attorney on the investigation and prosecution of the ECM matter.
Until Kathleen Pessolano left the agency in early 2013, she assisted me in the investigation of the
ECM matter.

3. Neither I, nor anyone who has appeared in this matter as Complaint Counsel,
knew of or was aware of the Ohio State Study, or any version thereof, prior to February 14,
2014.

4. Neither the Ohio State Study, nor any version thereof, was collected or reviewed
by anyone who has appeared in this matter as Complaint Counsel during the investigation or
prosecution of the ECM matter prior to February 14, 2014.

5. On March 12, 2014, Complaint Counsel first learned that the FTC had prior
contact with Dr. Michel.

6. When Ms. Pessolano left the agency, she turned over to me archived emails and
paper files from the ECM investigation.

7. In accordance with Commission Rule 3.31(b) regarding mandatory initial
disclosures, Rule 3.31(c) regarding the scope of discovery, and Respondent’s First Set of
Requests for Production of Documents, I searched the archived emails and paper files from the
ECM investigation that Ms. Pessolano provided to me.



PUBLIC DOCUMENT

publicly available document late — do not come close to meeting these standards. Moreover, as
discussed in Section I, supra, ECM’s allegations regarding unethical conduct are based on
misreading of the rules and are not supported in the caselaw.
IV. Conclusion

For all of these reasons, the Court should deny ECM’s Second and Third Motions to
Exclude the Ohio State Study.



ee ee

PUBLIC DOCUMENT

CX-C:1 at 2



ORIGINAL

UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSIQ

03 28 2014
96IV2QE
In the Matter of SECarraRy
ECM BioFilms, Inc., Docket No. 9358

a corporation, also d/b/a
Enviroplastics International PUBLIC DOCUMENT

ORAL ARGUMENT REQUESTED

Weevevevev

COMPLAINT COUNSEL’S AMENDED OPPOSITION
TO RESPONDENT’S SECOND AND THIRD MOTIONS TO EXCLUDE THE
OHIO STATE STUDY . .

In a continuing effort to exclude a damaging, peer-reviewed study performed by two
Ohio State researchers (“the Ohio State Study”), Respondent ECM filed two frivolous motions
(and a supplemental memorandum) alleging discovery misconduct. Because none of these

filings is grounded in the law or supported by fact, the Court should deny both motions.

I. ECM’s Motion to Exclude the Ohio State Study Based on “Intentional Dissuasion”
Lacks Merit.

First, Respondent erroneously argues that a letter sent by an FTC attorney pursuant to
FTC confidentiality regulations constitutes a discovery abuse. See Second Motion To Exclude
(Mar. 20, 2014). Specifically, the FTC Act and FTC regulations require that, in certain
circumstances, parties who submit materials to the FTC be provided “an opportunity to seek an
appropriate protective or in camera order.” 16 C.F.R. § 4.10(g); see also 15 U.S.C. §§ 57b-2(b),
57b-2(c), 57b-2(f). The FTC’s correspondence with Dr. Michel, which forms the basis for
ECM’s motion, was sent by an FTC attomey to allow production of the subpoenaed materials in
compliance with these requirements — a fact that ECM conveniently ignores.! ECM also fails to

mention that the FTC’s letter allowed immediate production of materials not subject to these

"Indeed, despite block-quoting nearly half the FTC’s letter, ECM omits ~ with ellipses —
that the FTC sent the submitter notice because the third-party materials requested by the
subpoena “may be entitled to confidential treatment under the FTC Rules of Practice... .”
Compare Second Motion to Exclude at 6 with Second Motion to Exclude at RX-B.



Results — anaerobic digestion

90%

80%

70%

60%

50%

40%

30%

20%

10%

% of initial cumulative C lost (CO2-C)

0%

0 5 10 15 20 25 30 35 40
Time (day)

45

50

Positive

tr PP + 2% ECM®

«—Ecobras®

PETE + 1% EcoPure®

—@Ecotainer®

Figure 8, Cumulative carbon loss (CO2-C) during anaerobic digestions as the percentage of initial

carbon (+SD) over time. For some data points SD bars are smaller than markers.

ANSWNDSO"0 9NaNd



PUBLIC DOCUMENT

CERTIFICATE OF SERVICE

Lhereby certify that on March 28, 2014, I caused a true and correct copy of the foregoing
to be served as follows:

One electronic copy through the FTC’s e-filing system, and one electronic courtesy copy to the
Office of the Secretary:

Donald S. Clark, Secretary

Federal Trade Commission

600 Pennsylvania Ave., NW, Room H-159
Washington, DC 20580

Email: secretary@ftc.gov

One electronic courtesy copy and one paper courtesy copy to the Office of the Administrative
Law Judge:

The Honorable D. Michael Chappell
Chief Administrative Law Judge

600 Pennsylvania Ave., NW, Room H-110
Washington, DC 20580

One electronic copy to Counsel for the Respondent:

Jonathan W. Emord Peter Arhangelsky

Emord & Associates, P.C. Emord & Associates, P.C.

11808 Wolf Run Lane 3210 S. Gilbert Road, Suite 4
Clifton, VA 20124 Chandler, AZ 85286

Email: jemord@emord.com Email: parhangelsky@emord.com
Lou Caputo

Emord & Associates, P.C.
3210 S. Gilbert Road, Suite 4
Chandler, AZ 85286

Email: lcaputo@emord.com

Date: March 28, 2014

Kat lohnson (kjohnson3 @ftc. gov)
Jo: Cohen (jcohen2@fic. gov)
Elisa Jillson (ejillson@fic.gov)

Federal Trade Commission

600 Pennsylvania Ave., N.W. M-8102B
Washington, DC 20580

Phone: 202-326-2185; -2551; -3001
Fax: 202-326-2551

12



PUBLIC DOCUMENT

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is appropriate given the disparity between the alleged impropriety (which
is either nonexistent or inadvertent) and the drastic relief sought here, including: (1) the referral
of Complaint Counsel to the bar; (2) the action’s dismissal; (3) the involvement of the Inspector
General; (4) the exclusion of highly probative evidence from the Commission’s record; (5)
injunctive relief to prohibit an FTC attorney not before the Court from communicating with an
expert regarding another matter also not before the Court; and (6) the de facto elimination or
alteration of 16 C.F.R. § 4.10(g) as applied to experts.

11



Anaerobic digestion

a 2-liter batch reactors.
a Incubator set at 37°C.

o 60g of test materials were mixed
with 340g of active’ sludge from a
anaerobic digester.

a The volume of gas produced, and
biogas composition were
quantified on a daily basis
(Gomez et al., 2011).

Figure 4, Photograph of the bench-scale AD reactor
system.

ALN3IWNDO0G 9nd


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(npenso@g9e oyu) ap Je4y2IW J4eped 4 HOSIAPY
(npanso@69°zewoB) zowod y aippy Huepnisg

1108

PUBLIC DOCUMENT

NI ONY. NOUS39IC DIdONSVNV
| 'QNILSOdWOD ONIING SUaald
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abt eevee Eau Shee ot rated ERLE AE huts

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Results — soil incubation
i a eee sa ae ae ae ae ee

80%

70%

60%

50%

40%

30%

20%

10%

% of initial cumulative C lost (CO2-C)

0%

0 100 200 300 400 500 600

Time (day)

Positive
—e—Ecobras®
—e—OP-47®
~a-PHA
-O=Ecotainer®
(PETE + 1% EcoPure®
PP + 2% ECM®
—e—Paper + asphalt
Coconut coir
Rice hull
—TMCow Po®

O=Peat Pot®

Figure 9, Cumulative carbon loss (CO2-C) during soil incubation as the percentage of initial carbon
(£SD) over time. For some data points SD bars are smaller than markers.

AN3INNDO” 9118Nd



PUBLIC DOCUMENT
Biodegradation of Bioplastics and Natural Fibers during Composting, Anaerobic Digestion and in Soil
Eddie Gémez”, Frederick C. Michel*®

REFERENCES

Composting Council, R., Education, F., United States Composting, C. 2002. Test methods for the examination of
composting and compost TMECC, US Composting Council. [Hauppage, N.Y.].

* EPA, O. 2010. 2009 Ohio Facility Data Report Tables, Division of Solid and Infectious Waste Management. Columbus.

EPA, O. 2011. 2009 Solid Waste Reduction and Recycling Statistics, Division of Solid and Infectious Waste
Management. Columbus.

Gomez, E., Martin, J., Michel, F.C. 2011. Effects of organic loading rate on reactor performance and archaeal
community structure in mesophilic anaerobic digesters treating municipal sewage sludge. Waste Management
& Research, 29(11), 1117-1123.

Grewal, S.K., Rajeev, S., Sreevatsan, S. Michel, F.C. 2006. Persistence of Mycobacterium avium subsp
paratuberculosis and other zoonotic pathogens during simulated composting, manure packing, and liquid
storage of dairy manure. Applied and Environmental Microbiology, 72(1), 565-574.

Hanley, Z., Slabas, T., Elborough, K.M. 2000. The use of plant biotechnology for the production of biodegradable
plastics. Trends in Plant Science, 5(2), 45-6.

Hopewell, J., Dvorak, R., Kosior, E. 2009. Plastics recycling: challenges and opportunities. Philosophical Transactions
of the Royal Society B-Biological Sciences, 364(1526), 2115-2126.

International, A. 2003a. Standard test method for determining aerobic biodegradation in soil of plastic materials or
residual plastic materials after composting (Standard D5988 - 03). ASTM International, West Conshohocken,
Pa.

International, A. 2003b. Standard test method for determining aerobic biodegradation of plastic materials under
controlled composting conditions (Standard D5338-98(2003)). ASTM International, West Conshohocken, Pa.

International, A. 2011. Standard test method for determining anaerobic biodegradation of plastic materials under
accelerated landfill conditions (Standard D5526 - 94(201)el). ASTM International, West Conshohocken, Pa.

International, A. 2002. Standard test method for determining anaerobic biodegradation of plastic materials under high-
solids’ anaerobic-digestion conditions (Standard D5511 - 11). ASTM International, West Conshohocken, Pa.

Ishigaki, T., Kawagoshi, Y., Ike, M., Fujita, M. 1999. Biodegradation of a polyvinyl alcohol-starch blend plastic film.
World Journal of Microbiology & Biotechnology, 15(3), 321-327.

Kyfikou, L, Briassoulis, D. 2007. Biodegradation of agricultural plastic films: A critical review. Journal of Polymers
and the Environment, 15(2), 125-150.

Michel, F.C., Pecchia, J.A., Rigot, J., Keener, H.M. 2004. Mass and nutrient losses during the composting of dairy
manure amended with sawdust or straw. Compost Science & Utilization, 12(4), 323-334.

Song, J:H., Murphy, R.J., Narayan, R., Davies, G.B.H. 2009. Biodegradable and compostable alternatives to
conventional plastics. Philosophical Transactions of the Royal Society B-Biological Sciences, 364(1526),
2127-2139.

Woolnough, C.A., Yee, L.H., Charlton, T., Foster, L.J.R. 2010. Environmental degradation and biofouling of ‘green’
plastics including short and medium chain length polyhydroxyalkanoates. Polymer International, 59(5), 658-
667.

ORBIT2012 6
CX-C:1 at 8



PUBLIC DOCUMENT

Likewise, ECM’s attempt to exclude the Ohio State Study based on the short delay the
FTC’s confidentiality regulations require should fail. ECM has not established any nexus
between the third-party confidential documents and the Ohio State Study. Indeed, although
ECM repeatedly has alleged conspiracy and bias, see e.g., Mot. at 3-4, such accusations are
baseless. Moreover, ECM has not articulated how (at most) a 10-day delay — roughly the same
amount of time ECM took to subpoena Dr. Michel after learning of his article — warrants
exclusion. Nor has it cited a single case that supports its position.

ECM’s other requested sanctions — dismissal of the case, removal of counsel, and referral
of counsel to the DC Bar and the Inspector General — are even more ridiculous. As the cases
ECM relies on make clear, “a case should not be dismissed with prejudice except ‘when a
plaintiff's misconduct is particularly egregious or extreme.’” Benitz-Garcia v. Gonzalez-Vega,
468 F.3d 1, 5 (1st Cir. 2006) (reversing dismissal where three discovery deadlines were violated)
quoting Benjamin v. Aroostook Med. Ctr., 57 F.3d 101, 107 (1st Cir. 1995); see also Bonds v.
District of Columbia, 93 F.3d 801, 808-09 (D.D.C. 1996) (reversing dismissal where lesser
sanctions not considered); Batson v. Néal Spelce Assocs., Inc., 765 F.2d 511, 516 (5th Cir. 1985)
(same); Moore v. Chicago, 2006 WL 1710234, at *15 (N.D. Ill. June 14, 2006) (denying
dismissal for discovery violations).'> Similarly, we are unaware of any authority (and ECM cites
none) in which a court disqualified attorneys to sanction them over an unintentional discovery
infraction. The facts here — that the FTC allowed a prior expert to expeditiously produce

materials consistent with its confidentiality regulations and, at most, inadvertently produced a

author on studies that had been published and later withdrawn from publication”), motion for
reconsideration denied, 2006 WL 159735 (F.T.C. Jan. 10, 2006). Note that Westlaw
erroneously reports two proposed orders filed by a Basic Research respondent as the Court’s
orders. Compare 2005 WL 3524922 with http://www.ftc. gov/sites/default/files/documents/cases
/2005/12/051206respmoforreconsider.pdf (last visited Mar. 28, 2014). The Court denied both
the sanctions motion, see WL 3524918 and the subsequent motions to reconsider the denial, see
2006 WL 159735.

15 Arias v. Dyncorp Aerospace Operations, 677 F. Supp. 2d 330, 333-34 (D.D.C. 2010),
in which the court dismissed certain classes of plaintiffs (as opposed to the case as a whole),
involved plaintiffs who failed for two years to complete questionnaire responses in violation of
multiple court orders.



UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

)

In the Matter of )
)

ECM BioFilms, Inc., ) Docket No. 9358

a corporation, also d/b/a )

Enyiroplastics International ) NONPUBLIC DOCUMENT
)

DECLARATION OF KATHLEEN PESSOLANO IN OPPOSITION
TO RESPONDENT’S SECOND AND THIRD MOTIONS TO EXCLUDE THE
OHIO STATE STUDY

In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury that the
following is true and correct:

1, Tam over 18 years of age, and I am a citizen of the United States. I was
employed by the Federal Trade Commission (“FTC”) as an attorney in the Bureau of Consumer
Protection from August 2009 to February 2013. I have personal knowledge of the facts set forth
herein.

2. On November 16, 2012, I received from Matthew J. Wilshire an e-mail with two.
attachments, both of which were titled “Biodegradation of Bioplastics and Natural Fibers During
Composting, Anaerobic Digestion and in Soil.” I received the e-mail and attached document in
connection with considering potential experts for two non-public investigations that were
unrelated to the investigation of ECM BioFilms, Inc. (“ECM”). Attachment 1 hereto is a true
and correct copy of the e-mail and attachments Treceived.

3. 1 do not recall reviewing this document. Had I reviewed this document and
realized that it mentioned ECM, I would have forwarded this document to Katherine Johnson,
with whom I was working on the ECM investigation, or preserved this document in the
investigation file and informed Ms. Johnson of its existence. It is my standard practice to inform
colleagues of materials potentially relevant to an investigation.

4. When I resigned the FTC for another position, I made a copy of e-mails I sent and
received in connection with the ECM investigation and informed Ms. Johnson of where to locate
those files. I also provided Ms. Johnson with paper files from the investigation.

VM ew

Kathleen Pessolano

Executed this 25th of March 2014 in Washington, D.C.



9b 38 LO-XD

Background

A product that contains 100% annually
renewable raw materials MAY or MAY
NOT ‘be’ biodegtadable/compostable. It all
depends on the molecular structure of the

ANSWNDO" DIT18Nd



Introduction
ee ee

The overall objective of this study was to determine the
biodegradability of a wide range of materials and
additives that are commercially available claiming to be
biodegradable or to confer biodegradability to
conventional plastics.

3)
x
9
3
&
3

iINSWNDO” 9I18Nd



PUBLIC DOCUMENT
Biodegradation of Bioplastics and Natural Fibers during Composting, Anaerobic-Digestion and in Soit
Eddie Gémez*, Frederick C. Michel”

were exposed to an active methanogenic inoculum derived from a full-scale anaerobic digester treating municipal
sewage sludge. The test was designed to measure the percent conversion of carbon in the test materials to biogas, a
combination of CH,, CO, and trace gases. These conditions resemble those found in high-solids anaerobic digestion
systems and in biologically active landfills.

The anaerobic digestion assays were performed using laboratory-scale batch reactors, without solids recycling.
Temperatures were maintained at mesophilic (36 + 1) conditions by means of incubators. The volume of gas produced,
and biogas composition were quantified on a daily basis (Gomez et al., 2011). All the reactors were inoculated with
methanogenically active sludge obtained from the Akron Waste Water treatment plants full-scale (3000 m3) anaerobic
digester. Once inoculated, reactors were sealed to initiate a 7 day start-up phase. The start-up process involved adapting.
the digester biomass to the operational conditions of the laboratory-scale reactors. After proper functioning of the
reactors was confirmed, sample materials (20 g dry) were added. The experiments were conducted over a period of 50
days. :

For the soil incubation experiment the degree. and rate of aerobic biodegradability of a plastic material in the
environment determines the extent to which and time period over which the plastic may be mineralized according to
ASTM D5988-03 (International, 2003a) test method. Agricultural soils were obtained from experimental units at the
OARDC. The soil media was a laboratory mixture of 43% certified organic top soil, 43% of no-till farm soil and 14%
sand. Soil was sieved to less than 2-mm particle size, plant materials, stones, and other inert materials were removed.
The soil was then analysed for moisture holding capacity (MHC) according to ASTM test method D2980. For this
experiment, 300 grams of the soil media (dw) were placed in the bottom of the vessels (figure 1). Soil was amended
with ammonium phosphate to give a C:N of 20:1 (by weight), including carbon contained in the test specimen. Distilled
water was added to bring the moisture content of the mixture to 60% of the MHC. The test samples containing 1000 mg
of carbon (~ 2 of sample) were then mixed thoroughly with the soil. A solution containing’ 20 ml of potassium
hydroxide (KOH) 0.5N was placed in each vessel. The experiments were conducted over a period of 550 days.

2.2 Chemical parameters

A variety of analytical measurements were used to monitor the biodegradation of sample materials during composting,
AD and in soil experiments. These included CO, evolution, total carbon content of the media and plastics, total nitrogen
and biogas production (CO, and CH).

The total carbon and nitrogen contents of the sample materials were measured according to methods developed by the
US Composting Council (Composting Council et al., 2002) by the Service Testing and Research laboratory (STAR) at
The OARDC in Wooster, OH. A VarioMax Carbon-Nitrogen combustion analyser (Elementar Americas Inc., Mount
Laurel, NJ, U.S.) was used to carry out the analyses based on combustion followed by CO.. Analyses for the complete
suite of elements was performed in the same location by ICP analysis after microwave digestion (EPA Method 3051).
The off-gas from the composting experiment was analysed for percent CO, using infrared spectroscopy (Vaisala model
GMT 220, range 0 to 20%). A polaragraphic oxygen system was used to measure percent oxygen (O,) (Mine Safety
Appliances model “ULTIMA,” range 0 to 25%). Data will be automatically recorded on a Campbell Scientific model
23XL data logger for each vessel every hour. Each vessel was equipped with a K-type thermocouple to measure
temperatures in the mixes near the middle of the compost, and data was recorded automatically every 12 min.
Volumetric production of biogas from the AD experiments was measured by collecting the off-gas from the reactors in
0.5 L tedlar bags. The gas volume evolved during the experiments was measured by pumping the gas through a drum
type wet-test volumetric gas meter (RITTER®, Bochum, Germany), volumes were converted to standard temperature
and pressure (STP) conditions based on the building temperature and pressure at the time of the measurement. The
methane content in the biogas was determined using a gas chromatograph (GC) HP 6890 (Agilent Technologies, Santa
Clara, CA, U.S.) series equipped with a ValcoPlot VP-Alumina (Valco Instruments Co. Inc., Ontario, Canada) column
and a thermal conductivity detector (TCD) operated isothermally at 40°C. Helium was the carrier gas at a flow rate of
20 ml/min.

Carbon dioxide produced in each vessel containing soil reacted with KOH to form bicarbonate (KHCO3). The amount
of CO, produced was determined by titrating the remaining KOH solution with 0.25N hydrochloric acid to a
phenolphthalein end-point. Vessels were incubated at room temperature. KOH traps were removed and titrated before
their capacity was exceeded. In addition O, content in the vessel was ensured not to fall below 18%. The time to replace

ORBIT2012 3
CX-C:1 at 5



PUBLIC DOCUMENT

E.T.C. 280, 1984 WL 565367 at *127 (July 25, 1984)) (sanctions may be appropriate for failure
to comply with discovery obligations where the failure was unjustified).

Further, ECM’s suggestion that a protective order somehow vitiates the FTC’s obligation
to provide submitter notice pursuant to § 4.10(g) flies in the face of the regulation’s plain
language, which provides that a submitter “will be afforded an opportunity to seek an appropriate
protective order or in camera order.” 16 C.F.R. § 4.10(g) (emphasis added); accord 46 Fed. Reg.
26284, 26287 (May 12, 1981) (Final Rule) (explaining that “rule 4.10(g) information will not be
disclosed in administrative or adjudicatory proceedings without affording the submitter an
opportunity to obtain a protective or in camera order”) (emphasis added). Indeed, the protective
order provides identical protections for confidential materials submitted by third parties,
requiring that “any party receiv[ing] a discovery request . . . that may require the disclosure of
confidential material . . . shall promptly notify the submitter” and that “such notification shall be
in writing and be received by the submitter at least 10 business days before production.”
Protective Order (Oct. 22, 2013) { 11 (emphasis added). It makes no sense that potentially
confidential third-party materials should receive less protection simply because ECM
propounded their request on an FTC expert in an unrelated matter who may not disclose the
potentially confidential documents at all.” See 16 C.F.R § 4.10(d).

7 Notwithstanding its flowery language and citations to The Federalist, the quasi-
Constitutional “separation of functions” argument that ECM’s March 25 Supplement asserts is
flat-out wrong because it is based entirely on the erroneous assumption that Mr. Wilshire is “one
of Complaint Counsel.” See Supplement at 1. Mr. Wilshire is not Complaint Counsel in this
action, he has never been Complaint Counsel, he had no “involvement in the investigation of
ECM,” CX-A ¥ 5, and his “only participation in the litigation with ECM has been related to the
sanctions motions ECM filed regarding [his] contact with Dr. Michel,” see id. ECM cites
nothing in support of its mistaken claim that Mr. Wilshire is “one of Complaint Counsel”—
which is ipse dixit reflecting either misguided speculation or a gross misunderstanding of
Complaint Counsel’s role vis-a-vis the rest of the FTC. Notably, Mr. Wilshire’s March 24 letter
instructed Dr. Michel “to produce, as soon as reasonably possible, responsive documents”
belonging to third party Down to Earth Designs, Inc., because Down to Earth waived any
objection under 16 C.F.R. § 4.10(g). See Supp. at RX-J. How Mr. Wilshire’s instruction to
produce documents could have possibly violated the Administrative Procedure Act and the
“separation of functions” doctrine is unclear, especially given that he is not Complaint Counsel.
Furthermore, even if Mr. Wilshire served as Complaint Counsel — and he does not — there is no

conceivable reason that informing a document custodian to disclose documents to ECM more
quickly than regulations require would violate any law or doctrine.

4



Results — composting
2

90%
~ Positive
9 80% 2 |
8 OPP + 2% ECM®
Ss) 70% see
id we~Paper + soy wax
S 60%
3) —~—Ecotainer®
2 50%
&
=
4 40%
|
S 20%
|
Ss 10% 4
x
0%
0 20 40 60 80 100 120
Time (day)
g
° Figure 7. Cumulative carbon loss (CO2-C) during composting as the percentage of initial carbon
> (SD) over time. For some data points SD bars are smaller than markers.
a
nd

LNAWNDO" 3N8Nd



Soil incubation

oO The soil media was a mixture of

organic top, no-till farm soil and
sand.

oO 2-liter vessels were used.

a 300 g dry of the soil media were

mixed with 2g of the test material.

o Vessels were incubated at room

temperature.

placed in each vessel to react with
the CO,.

a The amount of CO, produced was

determined by titrating with HCl
(0.25N) to a phenolphthalein end-
point.

A solution containing KOH (0.5N) was

Figure 5. Photograph of
incubation vessels.

the bench-scale

soil

LN3INNDOG 9I1ENd



DECLARATION OF MATTHEW J. WILSHIRE
Pursuant to 28 U.S.C. § 1746

In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury that the
following is true and correct:

1. T reside in Washington, D.C. I am over 18 years of age. I have personal knowledge of
the facts set forth below. If called as a witness, I could and would competently testify thereto.

2. I am a staff attorney with the Federal Trade Commission’s (“FTC’s”) Bureau of
Consumer Protection. I currently work in the Bureau’s Division of Financial Practices. From
May 2006 until January 2014, I worked in the Bureau’s Division of Enforcement.

3. From approximately September 2012 until January 6, 2014, I was the lead attorney in the
matter of Down to Earth Designs, Inc., d/b/a gDiapers (“gDiapers”) and another non-public
investigation that concerned environmental marketing claims.

4. In December 2012, the FTC retained Dr. Fred Michel of the Ohio State University as a
consulting expert in the two environmental marketing matters referenced in Paragraph 3. The
manager assigned to oversee my environmental marketing investigations did not oversee the
matter of ECM BioFilms, Inc. (“ECM”).

5. At no time did I have any involvement in the investigation of ECM. My only
participation in the litigation with ECM has been related to the sanctions motions ECM filed
regarding my contact with Dr. Michel.

6. On March 12, 2014, I received a phone call from Dr. Michel. He indicated that he had
received a subpoena from the Federal Trade Commission related to the ECM matter. Prior to
that phone call, I was unaware that Dr. Michel had received a subpoena. Dr. Michel stated that
some responsive documents in his possession had been submitted to the FTC by third parties
during my environmental marketing investigations.

7. On March 14, 2014, I sent notices to counsel for gDiapers and the other company we
investigated. These notices informed gDiapers and the other company of their rights under
Commission Rule 4.10(g), 16 C.F.R. § 4.10(g), to protect confidential information.

8. Asa condition of acting as an FTC consulting expert, Dr. Michel executed a non-
disclosure agreement. A true and correct copy of that non-disclosure agreement is attached
hereto as Attachment 1.

Executed this 26th of March 2014 in Washington, D.C. oS

Matthew J. Wilshire



PUBLIC DOCUMENT

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

NONDISCLOSURE AGREEMENT FOR CONTRACTORS

(1) Disclosure of FTC materials and Information. | will not divulge FTC materials and information
for any purpose to any person other than an authorized person.

. “FTC materials and information’ includes both materials and information provided to me
by the FTC (whether the FTC received such materials and information from a submitter
or generated them internally) and produced by me pursuant to my work for the FTC. It
includes materials and information in any form, including, for example, electronic form,
and it includes information identifying the existence of a nonpublic FTC investigation.

. An ‘authorized person” is

{1) a member of the FTC staff, or
(2) other coritractor personnel from whom the Contracting Officer has
received a signed FTC “Nondisclosure Agreement for Contractors.”

(2) Use of FTC materials.and information. | will not directly or indirectly use, or allow the use of,
FTC materials and information for ‘any purpose other than that directly associated with my
Officially assigned duties. | will not reveal the nature or content of FTC materials and
information to any unauthorized person, either by direct action, counsel, recommendation or

suggestion.

(3) Retiirn of FTC matérials aiid Information. At the conclusion of my work under this contract, |
will return to the FTC {or destroy, at the request of the Contractirig Officer’s Technical
Representative) all FTC materials, including copies, and all records containing FTC. materials and.
information.

Consistent with the above, | understand that all reports or data first produced during my contract
with the FTC and in connection with that contract shall be the sole property of the government.

None of these provisions shall limit disclosures: (1) at and consistent with directions of FTC. staff,
during an adjudicative or judicial proceeding to which the FTG is.a party;-or (2) with the written consent
of the FTC General Counsel, or the General Counsel's delegate, which consent can-only be given if
consistent with the FTC Act, the FTC's Rules of Practice, and any other applicable laws; regulations, or
orders:

Sanctions for misusé of FTC materials: and information may include a fine of up to $10,000,
imprisonment of up to ten yéats, or both.

Frederick C. Michel Jr. (typed or printed name)
fT 0 Mt. el ff. ~ (signature) __ The Ohio State University (company)
11/8/2012 (date) (contract number)

{At the time of contract award, the Contracting Officer is

the Contracting Officer's Technical Representative is )

FTC Form X33 (rev. 4706)
CX-A:1



PUBLIC DOCUMENT

the FTC directed Dr. Michel — who holds these materials as an agent — to produce materials not
covered by its confidentiality regulations and to produce confidential third-party materials
consistent with its confidentiality regulations. See CX-A; 16 C.F.R. § 4.10(d).° Indeed, the non-
disclosure agreement — which incorporates the FTC’s confidentiality regulations — requires FTC
staff or the FTC General Counsel to consent to disclosure of FTC materials. Jd. Thus, far from
thwarting discovery, the FTC’s letter is the mechanism by which discovery may proceed.
Accordingly, it does not constitute a failure to comply with discovery obligations — let alone an
“unjustified” one, as Rule 3.38 requires. See Order (Mar. 11, 2014) at 3 (citing In re IT&T, 104

Counsel has instructed Dr. Michel to produce documents responsive to ECM’s request and,
accordingly has not obstructed ECM’s access to discovery in violation of D.C. Rule of
Professional Conduct § 3.4(a). Further, Rule 3.4(f) involves requests of non-parties to refrain
from “voluntarily” providing adverse parties relevant information and, thus, does not implicate
formal discovery. D.C. R. Prof’l Conduct §3.4(f). Moreover, it specifically exempts agents like
Dr. Michel from the rule. Jd. Indeed, the cases ECM cites as support for its outlandish
accusations are inapposite. Harlan v. Lewis 141 F.R.D. 107, 113 (E.D. Ark. 1992), involved a
defense attorney’s attempt to influence third-party testimony, and In re Minniti, 2000 WL
275852, at *1-2 (Jan. 4, 2000) involved an attorney who threatened sanctions if the third party
produced the subpoenaed materials and later misrepresented that the case had been dismissed.
Ironically, Mr. Emord’s groundless accusations of unethical conduct and requests for bar referral
may themselves violate the Virginia Bar’s ethics rules. See Va. R. Prof?1 Conduct § 3.4(i)
(prohibiting an attorney from “[p]resent[ing] or threaten[ing] to present criminal or disciplinary
charges solely to obtain an advantage in a civil matter”); Va. R. Prof'1 Conduct § 3.4(j) (a lawyer
may not “[flile a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial,
or take other action on behalf of the client when the lawyer knows or when it is obvious that such
action would serve merely to harass or maliciously injure another.”).

5 16 C.F.R § 4.10(d) expressly applies to information in the custody of a consultant or
contractor retained by the FTC who has agreed in writing not to disclose third-party materials
marked confidential by the FTC. The non-disclosure agreement provides that a recipient of FTC
materials may not: (1) divulge materials and information to anyone other than an FTC employee
or contractor who has signed a non-disclosure agreement or (2) “directly or indirectly use...
FTC materials and information for any purpose other than that directly associated with .. .
officially assigned duties.” See CX-A:1. It further provides that disclosures may be made “at
and consistent with directions of FTC staff during an adjudicative or judicial proceeding to
which the FTC is a party.” Jd. (emphasis added). By signing the non-disclosure agreement —
which makes clear that the FTC retains control of the use of the documents it provides — Dr.
Michel is an agent for purposes of using FTC-provided documents. See RESTATEMENT (THIRD)
OF AGENCY § 1.01 (2006) (“Agency is the fiduciary relationship that arises when one person (a
‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the
principal’s behalf and subject to the principal’s control, and the agent manifests assent or
otherwise consents so to act.”),

6 This effort to facilitate discovery stands in marked contrast to the months of delay
caused by ECM’s refusal to disclose its customer list and subsequent frivolous motions to
prevent Complaint Counsel from obtaining basic discovery from its customers.

3



SL3e L:D-XD

Background

3.1.2 compostable plastic—a plastic that undergoes déata-
dation by biological processes during: composting to yield CO”, =)
water, ieneganie iguacosaoe wk pesca Saaaneeesig

+ They must biodegrade at:a rate compatable to yard trimmings, food scraps.
‘and other compostable materials; such-as kraft paper bags,

+ They must disintegrate, so that wo large plastic fragments remain to be
‘serpened put; http://www.bpiworld.org/BPI-Public

ANaIWND0"0 98Nd



PUBLIC DOCUMENT
Biodegradation of Bioplastics and Natural Fibers during Composting, Anaerobic Digestion and in Soil
Eddie Gomez", Frederick C. Michel**

Biodegradation of Bioplastics and Natural Fibers during
Composting, Anaerobic Digestion and in Soil

Eddie Gémez*, Frederick C. Michel Jr.*°

Contact: “Department of Food, Agricultural and Biological Engineering, The Ohio State University,
OARDC, 1680 Madison Avenue, Wooster, OH 44691, USA. michel.36@osu.edu, gomez.69@osu.edu.
Corresponding author.

EXECUTIVE SUMMARY

Plastics are increasingly causing pollution problems in natural environments due to their recalcitrant nature. Various
new materials have recently begun to be marketed that claim to biodegrade or compost during waste treatment. These
materials include conventional plastics amended with additives that are meant to confer biodegradability or
compostability as well as plastics made from biopolymers, and natural fiber based materials. Different industries are
particularly interested in these materials as alternatives to conventional plastics that are neither compostable nor
biodegradable. In this study, the amount of carbon in various commercially available bioplastics and natural fibers
converted to carbon dioxide (CO,) and methane was determined during soil incubation, composting and anaerobic
digestion (AD). The materials included biopolymers made from corn starch, polylactic acid and polyhydroxyalkanoate,
natural fibers such as coconut coir, paper, dry manure and asphalt and soy-wax coated paper as well as polypropylene
(PP) and other conventional plastics amended with additives claiming to confer biodegradability. Controls included
cellulose paper, pots made from PP. During the 550 day soil incubation experiment, all materials degraded more slowly
than the cellulose positive control. However the biopolymers and natural fiber materials showed substantial degradation
during this period. No significant degradation was observed for plastics amended with additives. During anaerobic
digestion for 50 days, 75% of the cellulose paper, 20-25% of the biopolymers and less than 2% of the additive
containing PP and PETE had been converted to biogas. After 110 days of composting, more than 70% of cellulose
paper, 0.6% of an additive amended PP, 51% of a corn starch based bioplastic and 12% of a soy-wax coated paper was
converted to CO,. In conclusion, although certain biopolymers and natural fibers appear to biodegrade to an appreciable
extent, none meet ASTM standards for biodegradability or compostability. Conventional plastics containing additives
did not biodegrade differently than non-additive containing plastics.

Keywords: bioplastics, composting, soil, anaerobic digestion, biodegradation.

1 INTRODUCTION

In 2010, the United States generated almost 14 million tons of plastics as containers and packaging and almost 7
million tons of nondurable goods such as example plates and cups (EPA, 2010). Only 8 percent of the total plastic
waste generated was recovered for recycling. A vast majority of the plastics that are commercially available are made
from non-renewable petroleum-based resources and are essentially not biodegradable. Thus, until improvements in
recycling programs are made, tons of plastics will accumulate in landfills, minimizing the overall landfill (Hopewell et
al., 2009). These materials are also increasingly causing pollution problems in natural environments due to their
recalcitrant nature and due to energy use and greenhouse gas emissions during their life cycle (Kyrikou & Briassoulis,
2007). Roadsides, parks, beaches and natural areas are inundated with plastic trash,

One reason for limited plastics recycling is that it is often commingled with organic wastes (food scraps, wet paper,
yard trimmings, soil and liquids), making it difficult and impractical to recycle without expensive cleaning and
sanitizing procedures. Food scraps and wet, non-recyclable paper comprise an additional 50 million tons of municipal
solid waste in the U.S. Composting these mixed organics could potentially recover a sizable portion of the waste stream,
dramatically increasing community organics recycling and natural resource sustainability. Biodegradable plastics can
replace the non-degradabl&’ plastics in these waste streams, allowing mixed wastes to be composted and making
municipal composting a significant tool to divert large amounts of otherwise unrecoverable waste.

ORBIT2012 1
CX-C:1 at 3



PUBLIC DOCUMENT

protections and, indeed, Dr. Michel produced such documents by the subpoena return date.”
Likewise, ECM fails to inform the Court that the materials in question were collected by the FTC
(and provided to Dr. Michel) in the context of two entirely different matters and that the
correspondence ECM complains of was sent by the lead attorney for those matters, who is not
Complaint Counsel?

Moreover, contrary to ECM’s unfounded allegations, FTC staff did not delay sending the
submitter notices. Rather, Dr. Michel contacted the FTC about the discovery request for the first
time on March 12, 2014, and the attorney he contacted immediately contacted Complaint
Counsel. CX-A (M. Wilshire Dec.) { 6. It was at this time that Complaint Counsel first learned
that anyone at the FTC had contact with Dr. Michel. CX-B (K. Johnson Dec.) { 4; CX-C (K.
Pessolano Dec.) ff 2-3; Clarification (Mar. 13, 2014) at 1. Two days later, the FTC sent the
submitter notices, informed Dr. Michel that it did not object to the production of materials not
covered under the FTC’s confidentiality regulations, and instructed Dr. Michel to wait to
produce potentially confidential third-party materials in compliance with FTC regulations and
his non-disclosure agreement. CX-A:1; CX-A J 7. .

Significantly, ECM has cited to no authority for imposing sanctions on these facts,
relying instead on cases involving private parties — with no statutory obligations — who dissuaded
third parties to withhold subpoenaed materials entirely. See Second Motion at 8.‘ In contrast,

2 ECM erroneously states that the FTC’s direction that Dr. Michel produce materials he
received from the FTC consistent with the FTC’s confidentiality regulations “applied to all but
one ECM subpoena request (item 20).” Second Motion to Exclude at 6. However, of the 21
document requests propounded, the only subpoena request implicated by the FTC’s
confidentiality regulations was Request 20. See Second Motion to Exclude at RX-A:3
(explaining that all documents related to item 20 were produced, with the exception of
documents containing information submitted to the FTC by third parties and noting that Ohio
State would answer the other 20 requests).

3 When the Commission issued the Complaint, two attorneys represented Complaint
Counsel: Katherine Johnson and Elisa Jillson. See Notice of Appearance (Nov. 15, 2013).
Subsequently, Jonathan Cohen filed an appearance on Complaint Counsel’s behalf. See Notice
of Appearance (Dec. 12, 2013). With respect to this matter, no other attorneys represent
Complaint Counsel currently, or have ever represented Complaint Counsel.

4+ BCM’s assertion that Complaint Counsel has violated the Rules of Professional
Responsibility is equally baseless. Specifically, as discussed in Section I, supra, Complaint

2



Conclusion
A |e Pe EERIE

o Certain biopolymers and natural fibers biodegraded to an
appreciable extent during composting, anaerobic digestion
and soil incubation

oO Conventional plastics did not biodegrade differently than non-
additive containing plastics and neither biodegraded to an
appreciable extent.

a None of the test materials degraded at the same rate or to
the same extent as the positive controls.

ANAWN9Od 98nd



Presentation Outline
ce eee eee
Oo Background:
- Plastic use in the U.S.
- Production of “green” plastics.
- Certifications.
oO Experimental design
O Results
O Conclusion

oO Using the data of this project, what’s next?

bbe L:O-XD

ALN3WNSOd OMENd



Compostability

OZ 38 L:0-XO

4-liter bioreactor vessels.
Incubator set at 55°C.

80g of test materials were
mixed with 1kg of mature
dairy manure compost.

Regulated humidified air
entered the vessels at a rate
of 100 ml/min (Grewal et
al., 2006).

The off-gas was analysed
for percent CO, (Vaisala
model GMT 220, range 0 to
20%).

Bioreactor System.

rowetasteitot gst Watéceoidinsor at
foictonssiitfnia) ‘nition tray (9" C.)

Batacollection-computer:

Figure 3. Schematic diagram and photograph of the bench-scale
composting reactor system

ANSINNDOG 3I18Nd



PUBLIC DOCUMENT

| Biodegradation of Bioplastics and Natural Fibers during Composting, Anaerobic Digestion and in Soil
H Eddie Gémez*, Frederick C. Michel*®

a trap varied with test materials. Moreover, a frequency of every 3 to 4 days for the first 2 to 3 weeks and every 1 to 3
thereafter was used. At the time of removal of the traps, the vessel was allowed to sit open for a maximum of 15
minutes to allow for fresh air to get into the system. In addition, distilled water was added accordingly to maintain
adequate moisture content. The test was terminated when the CO evolution reached a plateau assuming that all
accessible carbon was oxidized.

2.3. 2,3 Data analysis

Three independent replicates will be used for each treatment. Analysis of variance (ANOVA) will be calculated for the
average cumulative percent conversion for each of the tests. Comparisons for all pairs of bioconversion means will be
performed using Tukey-Kramer HSD method. All conclusions will be based on a significant difference level of a =
0.05. The statistical analyses will be performed using JMP statistical program version 9 (SAS Institute Inc., SAS
Campus Drive, NC, U.S.).

3. RESULTS AND DISCUSSION

Three materials were tested under composting conditions; corn starch biopolymer Ecotainer®, soy wax coated paper,
and polypropylene (PP) with 2% ECM® additive. The positive contro! used was cellulose paper. The initial rate of
degradation was similar for the positive control and the Ecotainer®, samples (Fig. 1). The Ecotainer material continued
to biodegrade steadily until the end of the experiment. Little conversion was observed for the soy wax coated paper or
the PP with additive. Soy wax coated paper samples reached a maximum degradation after 15 to 20 days of the
experiment. The average final carbon conversion for the coated paper and Ecotainer samples was 12.4+0.2 and
51.30.2% respectively. Over 70% biodegradation was observed for the positive control. Plastic with ECM additive did
not show significant degradation over the period of study (110 days).

90%

80%

% of initial cumulative C lost (CO2-C)

0 20 40 60 80 100 120

‘Time (day)

Figure 1. Cumulative carbon loss (CO.-C) during composting as the percentage of initial carbon (4SD) over time. For
some data points SD bars are smaller than markers.

Eleven different materials were tested in soil incubation experiments. The positive control used. was cellulose
paper. Bioconversion occurred at faster rate initially for most of the materials tested (Fig. 2). PHA and Ecobras®,
showed the greatest rate of degradation among the materials tested. This was followed by Cow Pot®, paper + asphalt,
and Ecotainer. Materials derived from natural fibers (Coconut coir, Rice hull and Peat Pot®) showed a slower, but
significant rate of degradation. No degradation was observed for PP and PETE with additives over the entire period of
study. After 550 days, the PHA and Ecobras® sample showed 56.44£0.7 and 53,0+0.8% carbon conversion to CO:,
respectively. Cumulative degradation of the materials made from paper and natural fibers were between 5 and 25%.

ORBIT2012 4
CX-C:1 at 6



UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of
ECM BioFilms, Inc., Docket No. 9358
a corporation, also d/b/a
Enviroplastics International PUBLIC DOCUMENT

ORAL ARGUMENT REQUESTED

ed

EXHIBITS IN OPPOSITION TO
ECM’S SECOND AND THIRD MOTIONS TO EXCLUDE THE OHIO STATE STUDY



What’s next?
2s

a Stage I: study of the biodegradation of materials that are available
in the market.

Method 1: CO, evolved. Status: completed.
Method 2: SEM microscopy. Status: ongoing.

Oo Stage 2: development of a biodegradable polymer from
agricultural residues to understand the factors affecting
biodegradation and production costs. Status: ongoing.

O Stage 3: a novel approach of complete Life Cycle Assessment (LCA)

study that will account for various end of life fates including

Q composting, landfilling, soil degradation and environmental release.
2 Status: ongoing.
2
nN

ANSWND00 9I18Nd



SEM microscopy
SE £8 RC eT SET

SE 07-Sep-10 WD13,4mm 15.0KVx70'  500un

JF 38 b:D-XO
LNaWN9O"0 98nd

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Complaint Counsel
Exhibit A
Attachment 1

CX-A:1