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STATE OF |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. GRADEX
INC, Respondent. |
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REVISED AGREED ORDER
Complainant
and Respondent desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order.
Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does
not constitute an admission of any violation contained herein. Respondent's entry into this Agreed Order
shall not constitute a waiver of any defense, legal or equitable, which
Respondent may have in any future administrative or judicial proceeding, except
a proceeding to enforce this order.
I.
FINDINGS OF FACT
1.
Complainant is the Commissioner (“Complainant”) of the
Indiana Department of Environmental Management (“IDEM”), a department of the
State of
2.
Respondent is Gradex Inc, (“Respondent”), who is under
contract with Walsh Construction Company who is under contract with the Indiana
Department of Transportation (“INDOT”) to perform grading and excavating work
for an INDOT highway project referred to as SR641 Phase 2B R-28177 Project Number
NH-291-1(007) Designation Number 9138220. This violation pertains to two
different sites within the above described project. The first site is (“Site
#1.”) known as the borrow pit consists of approximately 30 acres and is the
portion of the project that is covered by an approved Notice of Intent (“NOI”)
and Permit Number INR106013. This site is privately owned by Christopher Davidson located at
3.
IDEM has jurisdiction over the parties and the subject
matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation
via Certified Mail to:
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Gradex Inc, |
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5.
Pursuant to 327 IAC 15-2-5(a), any person subject to the
requirements of 327 IAC 15 shall submit a notice of intent (“NOI”) letter that
complies with 327 IAC 15-2-5, 327 IAC 15-3, and the additional requirements in
the applicable general permit rule.
Pursuant to 327 IAC 15-5-2(a), the
requirements under this rule apply to all persons who:
(1) do not obtain an individual NPDES permit
under 327 IAC 15-2-6;
(2) meet the general permit rule
applicability requirements under 327 IAC 15-2-3; and
(3) are involved in construction activity,
except operations that result in the land disturbance of less than one (1) acre
of total land area as determined under subsection (h) and are not part of a
larger common plan of development or sale.
Pursuant
to 327 IAC 15-5-2(d), the project site owner has the following responsibilities:
(1) Complete a sufficient notice of intent
letter.
(2) Ensure that a sufficient construction
plan is completed and submitted in accordance with 327 IAC 15-5-6;
(3) Ensure compliance with 327 IAC 15-5
during:
(A) the construction activity; and
(B) implementation of the construction plan.
(4) Notify the department with a sufficient
notice of termination letter.
(5) Ensure that all persons engaging in
construction activities on a permitted project site comply with the applicable
requirements of 327 IAC 15-5 and the approved construction plan.
Pursuant
to 327 IAC 15-5-5, the information set forth in 327 IAC 15-5-5 must be
submitted by the project site owner with a complete NOI letter under this rule,
including a notification from the SWCD or other entity designated by the
department as the reviewing agency indicating that the construction plans are
sufficient to comply with this rule.
Pursuant
to 327 IAC 15-5-6(a), after the project site owner has received notification
from the reviewing agency that the construction plans meet the requirements of
the rule or the review period outlined in subsection (b)(3) has expired, all
NOI letter information required under 327 IAC 15-5-5 shall be submitted to the
commissioner at least forty-eight (48) hours prior to the initiation of land
disturbing activities at the site.
Based on
inspections conducted by IDEM staff on April 30, 2007, and a record review,
Respondent failed to submit an NOI letter to IDEM prior to initiating land
disturbing activities at Site #2, in violation of 327 IAC 15-2-5, 327 IAC
15-5-2, 327 IAC 15-5-5, and 327 IAC 15-2-6.
6.
Pursuant to 327 IAC 15-5-6.5(a), for project sites that do
not meet the criteria in 327 IAC 15-5-6.5(b), the project site owner shall
develop a set of construction plans.
Storm water quality measures included in the plan must achieve the
minimum project site requirements specified in 327 IAC 15-5-7, and must include
the information set forth in 327 IAC 15-5-6.5(a).
Pursuant
to 327 IAC 15-5-6(b)(1), for a project site where the proposed land disturbance
is one (1) acre or more as determined under 327 IAC 15-5-2, a construction plan
must be submitted prior to the initiation of any land disturbing activities,
and sent to the appropriate SWCD or other entity designated by IDEM for review.
Based on the inspection conducted by
IDEM staff on April 30, 2007, and a record review, Respondent failed to submit
a construction plan for Site #2 prior to initiating land disturbing activities,
in violation of 327 IAC 15-5-2(d), 327 IAC 15-5-6.5(a) and 327 IAC 15-5-6(b).
7.
Pursuant to 327 IAC 15-5-7(a), all storm water quality
measures and erosion and sediment controls necessary to comply with this rule
must be implemented in accordance with the construction plan and sufficient to
satisfy 327 IAC 15-5-7(b).
Pursuant to
327 IAC 15-5-7(b), a project site owner shall, at least, meet the requirements
set forth in this section including the following:
1)
Sediment-laden water which otherwise would flow from the
project site shall be treated by erosion and sediment control measures
appropriate to minimize sedimentation.
2)
Appropriate measures shall be taken to minimize or eliminate
wastes or unused building materials, including garbage, debris, cleaning
wastes, wastewater, concrete truck washout, and other substances from being
carried from a project site by run-off or wind.
3)
A stable construction site access shall be provided at all
points of construction traffic ingress and egress to the project site.
4)
Public and private roadways shall be kept clear of accumulated
sediment that is a result of run-off or tracking. Bulk clearing of sediment shall not include
flushing the area with water. Cleared
sediment shall be redistributed or disposed of in a manner that is in accordance
with all applicable statutes and regulations.
5)
Stormwater run-off leaving a project site must be discharged
in a manner that is consistent with applicable state or federal law.
6)
The project site owner shall post a notice near the main
entrance of the project site, in accordance with subdivision (6) of this rule.
7)
The permit and posting of the notice under subdivision (6)
does not provide the public with any right to trespass on a project site for
any reason, nor does it require that the project site owner allow member of the
public access to the project site.
8)
The stormwater pollution prevention plan (“SWPPP”) shall
serve as a guideline for stormwater quality, but should not be interpreted to
be the only basis for implementation of stormwater quality measures for a
project site.
9)
The project site owner shall inform all general contractors,
construction management firms, grading or excavating contractors, utility
contractors, and the contractors that have primary oversight on individual
building lots of the terms and conditions of this rule and the conditions and
standards of the SWPPP and the schedule for proposed implementation.
10)
Phasing of construction activities shall be used, where
possible, to minimize disturbance of large areas.
11)
Appropriate measures shall be planned and installed as part of
an erosion and sediment control system.
12)
All stormwater quality measures must be designed and
installed under the guidance of a trained individual.
13)
Collected run-off leaving a project site must be either
discharged directly into a well-defined, stable receiving channel or diffused
and released to adjacent property without causing erosion or pollutant problem
to the adjacent property owner.
14)
Drainage channels and swales must be designed and adequately
protected so that their final gradients and resultant velocities will not cause
erosion in the receiving channel or at the outlet.
15)
Natural features, including wetlands and sinkholes, shall be
protected from pollutants associated with stormwater run-off.
16)
Unvegetated areas that are scheduled or likely to be left inactive
for fifteen (15) days or more must be temporarily or permanently stabilized
with measures appropriate for the season to minimize erosion potential. Alternative measures to site stabilization
are acceptable if the project site owner or their representative can
demonstrate they have implemented erosion and sediment control measures
adequate to prevent sediment discharge.
Vegetated areas with a density of less than seventy percent (70%)
restabilized using appropriate methods to minimize the erosion potential.
17)
During the period of construction activities, all stormwater
quality measures necessary to meet the requirements of this rule shall be
maintained in working order.
18)
A self-monitoring program that includes provisions of
subdivision (18) of this rule shall be implemented.
19)
Proper storage and handling of materials, such as fuels or
hazardous wastes, and spill prevention and clean-up measures shall be
implemented to minimize the potential for pollutants to contaminate surface or
ground water or degrade soil quality.
20)
Final stabilization of a project shall occur when
requirements of subdivision (20) of this rule are achieved.
Based on inspections
conducted by IDEM staff on April 30, 2007, July 20, 2007, September 17, 2007, December
10, 2007, January 31, 2008, April 17, 2008, June 26, 2008, October 14, 2008,
January 8, 2009, Respondent failed to ensure that
storm water quality measures and erosion and sediment controls necessary to
comply with this rule were implemented in accordance with a construction plan
and sufficient to satisfy 327 IAC 15-5-7(b).
Specifically it was observed that Respondent:
1) Failed to implement erosion and
sediment control measures to minimize sedimentation from sediment-laden water
which would flow from the project site, in violation of 327 IAC 15-5-7(b)(1).
2) Failed to implement appropriate
measures to minimize sedimentation to natural features such as wetlands and
streams, in violation of 327 IAC 15-5-7(b)(15).
3) Failed to implement a self-monitoring
program that includes the requirements set forth in 327 IAC 15-5-7, in
violation of 327 IAC 15-5-7(b)(18).
4) Failed to plan and install appropriate
measures as part of an erosion and sediment control system, in violation of 327
IAC 15-5-7(b)(11).
5) Failed to maintain in working order all
storm water quality measures necessary to meet the requirements, in violation
of 327 IAC 15-5-7(b)(17).
8.
Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and
at all places, including the mixing zone, shall meet the minimum conditions of
being free from substances, materials, floating debris, oil or scum
attributable to municipal, industrial, agricultural, and other land use
practices, or other discharges:
(A)
that will settle to form putrescent or otherwise
objectionable deposits;
(B)
that are in amounts sufficient to be unsightly or
deleterious;
(C)
that produce color, visible oil sheen, odor, or other
conditions in such degree as to create a nuisance;
(D)
which are in amounts sufficient to be acutely toxic to, or
to otherwise severely injure or kill aquatic life, other animals, plants, or
humans; and
(E)
which are in concentrations or combinations that will cause
or contribute to the growth of aquatic plants or algae to such degree as to
create a nuisance, be unsightly or other wise impair the designated uses.
Pursuant to Indiana Code (“IC”)
13-30-2-1(1), a person may not discharge, emit, cause, allow or threaten to
discharge, emit, cause, or allow any contaminant or waste, including any
noxious odor, either alone or in combination with contaminants from other
sources, into the environment.
Pursuant to IC 13-18-4-5, it is
unlawful for any person to throw, run, drain, or otherwise dispose into any of
the streams or waters of Indiana; or cause, permit, or suffer to be thrown,
run, drained, allowed to seep, or otherwise disposed into any waters; any
organic or inorganic matter that causes or contributes to a polluted condition
of any waters, as determined by a rule of the board adopted under sections 1
and 3 of this chapter.
Respondent
failed to install erosion and sediment control measures sufficient to prevent
sediment from entering Honey Creek and/or allowing sediment to leave the Site
to Honey Creek, all of which are waters of the State, in amounts sufficient to
threaten or cause actual harm to the environment, in violation of 327 IAC
2-1-6(a)(1), and thus violated IC 13-30-2-1(1) and IC 13-18-4-5.
10.
Additionally, Respondent, as the project site owner, failed
to ensure compliance with 327 IAC 15-5 during the construction activity and
during implementation of a construction plan, in violation of 327 IAC
15-5-2(d).
11.
In recognition of the settlement reached, Respondent waives
any right to administrative and judicial review of this Agreed Order.
II.
ORDER
1.
This Agreed Order shall be effective (“Effective Date”) when
it is approved by Complainant or Complainant’s delegate, and has been received
by Respondent. This Agreed Order shall
have no force or effect until the Effective Date.
2.
Respondent shall comply with all rules and statutes cited
above at issue.
3. Respondent shall, within 30 days of the
effective date, submit a storm water pollution prevention plan (“SWPPP”) for
compliance with 327 IAC 15-5 (Rule 5). A
plan is needed for permit coverage of the haul road from the borrow pit to and
including Little Honey Creek stream crossing.
The plan should address/focus on the removal of temporary structures and
measures and restoration/stabilization of the areas disturbed from
construction, removal and operation of the haul road from the borrow pit to the
INDOT SR 641 project. Included in this
plan should be provisions for the self monitoring requirements required in 327
IAC 15-5-7 (b)(18) to be implemented
until the Notice of Termination can be filed for the entire site, including the
borrow pit.
4. Respondent shall, within 30 days of the
effective date, submit an Amended Notice of Intent to include the acreage/area of soil
disturbance associated with the borrow pit haul road and Little Honey Creek
temporary stream crossing.
5. The SWPPP
and the amended NOI shall be submitted to Doug Wolf Storm Water Specialist,
IDEM OWQ:
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Douglas R. Wolf, CPESC |
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Storm
Water Specialist, Wetlands and Storm Water Section |
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Watershed
Planning Branch, Office of Water Quality, IDEM |
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MC
65-42 IGCN 1255 |
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E-Mail: dwolf@idem.IN.gov |
6. In the event that the NOI or SWPPP
submitted pursuant to Order Paragraph 3 and 4 above is found by IDEM to be
deficient, Respondent shall, within 15 days of receipt of notification from
IDEM of such deficiency(s), revise and resubmit the NOI or SWPPP. Should the revised NOI or SWPPP be found by
IDEM to be deficient, Respondent shall be subject to the stipulated penalties
provided for in Order Paragraph 17 below.
7. Respondent shall, immediately implement
appropriate erosion and sediment control measures to address any current issues
associated with the site and upon receipt of
approval of the NOI or SWPPP by IDEM implement
those measures identified in the plan that are not currently installed and
operational and any other erosion and sediment
control measures necessary to:
a. Ensure compliance with the requirements
of 327 IAC 15-5-7 and 327 IAC 2-1-6(a)(1); and
b. Prevent sediment from leaving the site
and entering or threatening to enter waters of the state.
8. Respondent
shall, upon the Effective Date, implement a self-monitoring program as required
by 327 IAC 15-5-7(18), including assuring that a trained individual performs a
written evaluation of the project site by the end of the next business day
following each measurable storm event; and at a minimum of one time per week
until a notice of termination is submitted, in order to determine whether the
erosion and sediment controls are:
a.
properly installed and maintained; and
b.
adequate to ensure compliance with the requirements of 327
IAC 15-5-7 and to prevent sediment from leaving the site and entering or
threatening to enter waters of the state.
For the purposes of this Agreed Order,
a “measurable storm event” is defined as a precipitation event that results in
a total measured precipitation accumulation equal to or greater than 0.5 inches
of rainfall.
9. In the event that deficiencies are
found during the inspections of the Site conducted pursuant to Order Paragraph 8
above, Respondent shall immediately take all actions necessary to correct the
deficiencies. Such actions may include, but are not necessarily limited to,
removal of accumulated sediment from behind silt fences and storm inlets,
assurance that conveyance channels and swales are stabilized, and installation
of additional erosion control measures if determined necessary.
10. Respondent shall maintain records of the
inspections conducted pursuant to Order Paragraph 8 above and corrective
actions taken pursuant to Order Paragraph 9 above. The records shall include, but not
necessarily be limited to:
a.
the date and time of inspection;
b.
the weather conditions at the time of the inspection;
c.
the name of the individual conducting the inspection;
d.
a description of observations made during the inspection,
specifically including a description of any deficiencies that were found; and
e.
A description of the corrective actions taken as a result of
deficiencies found during the inspection.
11. Respondent shall make the records
required pursuant to Order Paragraph 10 above available for inspection and
copying by representatives of IDEM, and the SWCD.
12. Respondent shall, within 15 days of the
Effective Date, provide written notification to all parties with access to the
Site, including contractors and subcontractors, of the requirements contained
in the approved CP.
13. Respondent shall, within 30 days of the
Effective Date, submit to IDEM a copy of the notification required pursuant to
Order Paragraph 12 above and a statement certifying that the notification was
provided to all parties with access to the Site.
14. The requirements of the Paragraphs above
shall remain in effect until the earlier of:
a. Respondent submits notification of
termination of construction activity pursuant to 327 IAC 15-5-11 for the Site,
or
b. Respondent
has no “unsatisfactory” ratings in inspections from IDEM or the SWCD for one
year after the Effective Date,
and a representative of IDEM or the Vigo County SWCD approves
the adequacy of the remaining permanent erosion control measures in accordance
with 327 IAC 15-5-8(b).
15. All submittals required by this Agreed
Order, unless notified otherwise in writing, shall be sent to:
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Scott McGlinchey, Enforcement Case
Manager |
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Water Enforcement Section |
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Office of Water Quality, Mail Code 60-02W |
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Indiana Department of Environmental
Management |
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16. Respondent is assessed a civil penalty of
Sixteen Thousand Eight Hundred Dollars ($16,800). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within forty-five (45) days of the
Effective Date. In the event that the
civil penalty is not paid within forty-five (45) days of the Effective Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1-101. The interest shall
continue to accrue until the civil penalty is paid in full.
17. In the event the terms and conditions of
the following paragraphs are violated, the Complainant may assess and
Respondent shall pay a stipulated penalty in the following amount:
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Order
Paragraph |
Violation |
Penalty |
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Paragraph
3 |
Failure
to submit a SWPPP within the required timeframe. |
$500
per week late |
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Paragraph
4 |
Failure
to timely submit the amended NOI within the required timeframe. |
$500
per week late |
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Paragraph
6 |
Failure
to revise and resubmit a sufficient NOI within the required timeframe. |
$500
per week late |
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Paragraph
8 |
Failure
to implement a self monitoring program and to inspect the Site as required. |
$500
per violation |
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Paragraph
9 |
Failure
to immediately take all actions necessary to correct deficiencies found
during Site inspections. |
$500
per violation |
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Paragraph
10 |
Failure
to maintain records as required. |
$500
per violation |
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Paragraph
11 |
Failure
to maintain required records at the Site, or failure to make required records
available to IDEM and SWCD. |
$500
per violation |
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Paragraph 13 |
Failure
to timely submit certification statement and copy of notice provided pursuant
to Order Paragraph 15. |
$250
per week or part thereof late |
18. Stipulated penalties shall be due and
payable within thirty (30) days after Respondent receives written notice that
Complainant has determined a stipulated penalty is due, unless Respondent
disputes the assessment in which case the stipulated penalty would be paid
thirty (30) days after resolution of the dispute. Assessment and payment of stipulated penalties
shall not preclude Complainant from seeking any additional relief against
Respondent for violation of this Agreed Order.
In lieu of any of the stipulated penalties set out above, Complainant
may seek any other remedies or sanctions available by virtue of Respondent’s
violation of this Agreed Order or Indiana law, including, but not limited to,
civil penalties pursuant to IC 13-30-4.
19. Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this
action and shall be mailed to:
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Indiana Department of Environmental
Management |
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Cashier – Mail Code 50-10C |
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20. This Agreed Order shall apply to and be
binding upon Respondent and his successors and assigns. Respondent’s signatories to this Agreed Order
certify that he is fully authorized to execute this Agreed Order and legally
bind the party he represents. No change
in ownership, corporate, or partnership status of Respondent shall in any way
alter his status or responsibilities under this Agreed Order.
21. In the event that any terms of this
Agreed Order are found to be invalid, the remaining terms shall remain in full
force and effect and shall be construed and enforced as if this Agreed Order
did not contain the invalid terms.
22. Respondent shall provide a copy of this
Agreed Order, if in force, to any subsequent owners or successors before
ownership rights are transferred. Respondent shall ensure that all contractors,
firms and other persons performing work under this Agreed Order comply with the
terms of this Agreed Order.
23. This Agreed Order is not and shall not be interpreted to be a
permit or a modification of an existing permit.
This Agreed Order, and IDEM’s review or approval of any submittal made
by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent
of his obligation to comply with the requirements of his applicable permits or
any applicable Federal or State law or regulation.
24. Complainant does not, by its approval of this Agreed Order,
warrant or aver in any manner that Respondent’s compliance with any aspect of
this Agreed Order will result in compliance with the provisions of any permit,
order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its
behalf shall not be held liable for any costs or penalties Respondent may incur
as a result of Respondent’s efforts to comply with this Agreed Order.
25. Nothing in this Agreed Order shall prevent or limit IDEM’s
rights to obtain penalties or injunctive relief under any applicable Federal or
State law or regulation, except that IDEM may not, and hereby waives its right
to, seek additional civil penalties for the same violations specified in the
NOV.
26. Nothing in this Agreed Order shall prevent IDEM (or anyone
acting on its behalf) from communicating with the EPA or any other agency or
entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not
be held liable for any costs or penalties Respondent may incur as a result of
such communications with the EPA or any other agency or entity.
27. This Agreed Order shall remain in effect until Respondent complies
with the terms of Order Paragraph Nos. 3 through 19 and IDEM issues a
Resolution of Case (close out) letter.
REMAINDER OF PAGE LEFT BLANK INTENTIONALLY
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Gradex Inc |
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Mark W. Stanifer, Chief |
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Water Enforcement Section |
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Office of Water Quality |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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By: |
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Deputy Attorney General |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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For The Commissioner: |
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Signed on October 23, 2009 |
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Bruno Pigott |
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Assistant Commissioner |
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Office of Water Quality |
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