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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2009-18768-S |
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NATURE'S FUEL ATWOOD, LLC, |
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Respondent. |
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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 Nature's Fuel Atwood, LLC, which operates a facility located at
3. Respondent
operates a pyrolysis unit which is mainly used to convert wood and wood waste
to renewable energy. As part of this
process, bio gas, bio oil, and bio char (char) are produced.
4. Respondent
has submitted applications to IDEM for a Research, Development, and
Demonstration Permit for exploring the potential of alternate technologies,
techniques, environmental controls, feedstocks, etc., as well as for a Land
Application Marketing and Distribution Permit.
Respondent also has a Pending Air Permit, No. 28516, which is currently on public notice.
5. As
part of this Agreed Order, Respondent agrees to cease all pyrolysis operations
at the Site on or before January 31, 2011.
Respondent also agrees to withdraw the Research, Development, and
Demonstration and the Land Application Marketing and Distribution permit
applications for this Site which are pending at IDEM within ten (10) days of
the Effective Date.
6. IDEM
has jurisdiction over the parties and the subject matter of this action.
7. Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation ("NOV"), via Certified Mail, for violations
found during inspections conducted on August 4, 5, 6, 10, 2009 and September 2,
2009, to:
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Glenn W. Johnson, Managing Member |
Solomon L. Lowenstein Jr.,
Registered Agent for |
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Nature's Fuel Atwood, LLC |
Nature's Fuel Atwood, LLC |
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8. Respondent
waives issuance of a Notice of Violation and to the settlement period of sixty (60)
days as provided for by IC 13-30-3-3 for the following violations.
a. On May 23, 2009, Respondent allowed accumulation
of char that contributed to a fire causing air pollution to occur outside the facility
in a char storage container requiring a response by the Atwood Fire Department
in violation of Condition C.4 of Permit, 085-26494-00115 and 326 IAC 4-1-2;
b.
On May 21, 2009, during an
inspection conducted by IDEM, a small smoldering
fire causing air pollution was observed in a char box located on the North side
of the facility in a designated isolation zone in violation of Condition C.4 of
Permit, 085-26494-0115 and 326 IAC 4-1-2;
c.
On December 24, 2009, Respondent
allowed accumulation of char that contributed to a fire causing air pollution to
occur outside the facility in a char storage container requiring a response by
the Atwood Fire Department in violation of Condition C.4 of Permit, 085-26494-00115
and 326 IAC 4-1-2;
d.
On April 19, 2010, Respondent
allowed the accumulation of char, that was isolated outdoors, to contribute to
a fire causing air pollution to occur outside the facility in six (6) char
storage containers requiring a response by the Atwood Fire Department in
violation of Condition C.4 of Permit, 085-26494-00115 and
326 IAC 4-1-2; and
e.
On January 14 and 15, 2010, Respondent
demonstrated a VOC emissions rate of 1.49 lbs/hr of VOC per ton of the
feedstock, in violation of Condition D.1.2 of Permit, 085-26494-00115 during a stack
test conducted on the Carbon and Lime Injected Baghouse.
9. During
an investigation including inspections on August 4, 5, 6, 10, 2009 and
September 2, 2009, conducted by a representative of IDEM, the following
violation was found:
a. Pursuant to IC 13-30-2-1(5), no
person may dump or cause or allow the open dumping of garbage or any other
solid waste in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
As noted during the August
inspection dates, Respondent dumped or caused or allowed the open dumping of
solid waste in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3 in the following
instances:
i.
Approximately
three thousand (3,000) gallons of bio oil and over one thousand (1,000) gallons
of water used to clean the bio oil tank were dumped onto the ground between the
main building and the wood scrap storage building; and
ii. Solid
waste was observed along the southeast side of the property where unusablebio
char generated from extinguishing smoldering char was disposed on a concrete
pad and surrounding area located behind the plant.
10. During
an investigation including an inspection on May 21, 2009 and a record review on
June 16, 2010, conducted by a representative of IDEM, the following violations
were found:
a.
Pursuant to FESOP Permit No.
085-26494-00115, Condition C.4, Open Burning, and 326 IAC 4-1-2, Respondent
shall not open burn any material except as provided in 326 IAC 4‑1‑3,
326 IAC 4‑1‑4 or 326 IAC 4‑1‑6.
As
noted during the inspection and/or record review, Respondent allowed open burning
in the following instances:
i. On May 23, 2009, Respondent allowed
accumulation of char that contributed to a fire causing air pollution to occur
outside the facility in a char storage container requiring a response by the
Atwood Fire Department in violation of Condition C.4 of Permit, 085-26494-00115
and 326 IAC 4-1-2;
ii. On May 21, 2009, during an inspection
conducted by IDEM, a small smoldering fire causing air pollution was observed
in a char box located on the North side of the facility in a designated
isolation zone in violation of Condition C.4 of Permit, 085-26494-00115 and 326 IAC 4-1-2;
iii. On December 24, 2009, Respondent
allowed accumulation of char that contributed to a fire causing air pollution to
occur outside the facility in a char storage container requiring a response by
the Atwood Fire Department in violation of Condition C.4 of Permit,
085-26494-00115 and 326 IAC 4-1-2; and
iv. On April 19, 2010, Respondent allowed accumulation
of char that contributed to a fire causing air pollution to occur outside the
facility in six (6) char storage containers requiring a response by the Atwood
Fire Department in violation of Condition C.4 of Permit, 085-26494-00115 and 326 IAC 4-1-2.
b.
Pursuant to FESOP Permit No.
085-26494-00115, Condition D.1.2, Respondent’s pyrolysis unit is limited to
0.89 lbs/hr of VOC per ton of the feedstock, and the amount of the feedstock
shall not exceed 55,500 tons per twelve (12) consecutive month period, with
compliance determined at the end of each month.
As
noted during the record review, during a stack test conducted on the Carbon and
Lime Injected Baghouse on January 14 and 15, 2010, Respondent demonstrated a
VOC emissions rate of 1.49 lbs/hr of VOC per ton of the feedstock, in violation
of Condition D.1.2 of Permit, 085-26494-00115.
On September 9, 2009 Respondent
submitted application, No. 085-28516-00115 requesting that the maximum capacity
of the pyrolysis unit be decreased from 10 tons per hour to 4.5 tons per
hour. Condition D.1.3, of draft Permit
No. 085-28516-00115 states that VOC emissions from the pyrolysis unit shall not
exceed 1.49 pounds of VOC per ton of feedstock processed. Respondent will be in compliance with the VOC emissions
limits of 1.49 pounds of VOC per ton of feedstock processed upon issuance of Permit
No. 085-28516-00115. Compliance with
this limit in conjunction with Conditions D.1.1(a) and (b), shall limit the
potential to emit VOC from the pyrolysis unit to less than 25 tons per 12 consecutive
month period and shall render the requirements of 326 IAC 8-1-6 (VOC Rules:
General Reduction Requirements for New Facilities New Facilities) not applicable.
11. Pursuant
to I.C. § 13-14-8-8, Respondent has requested a variance from the requirement
to obtain a solid waste processing permit due to undue hardship and burden upon
the Respondent. IDEM agrees to grant a
variance for this requirement up to and including January 31, 2011, provided
the Respondent complies with all aspects of this Agreed Order, including all
Best Management Practices and the requirement to cease all pyrolysis operations
by January 31, 2011.
12. In
recognition of the settlement reached, Respondents 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 cease all pyrolysis operations at this Site on or before January 31,
2011. The
remaining waste wood and other waste raw materials stored at the Site shall be
removed within thirty (30) days of cessation of pyrolysis operations, but no
later than March 2, 2011. After ceasing
of the pyrolysis operations, the bio char shall be removed within thirty (30)
days of cooling to less than120oF.
3. The
equipment used for processing the waste wood such as the conveyors, pyrolysis
reactor, baghouse, and condenser shall be cleaned of waste or product within ninety
(90) days following cessation of pyrolysis operations, but no later than May 1,
2011. The bio oil produced or stored at
the Site shall be sold and removed or sent for proper disposal within one
hundred eighty (180) days of January 31, 2011.
After removal of bio oil, the tanks shall be cleaned with proper
disposal of any liquids generated. Respondent
shall provide IDEM with documentation demonstrating that any liquids generated
from the cleaning of these units have been properly disposed within forty five (45)
days of cleaning.
4. Within
ten (10) days of the Effective Date, Respondent shall withdraw the Research, Development,
and Demonstration and the Land Application Marketing and Distribution permit applications
for this Site which are pending at IDEM.
5. In
the future, Respondent shall not construct and/or operate a pyrolysis facility that
accepts solid waste in the State of
6. Upon
the Effective Date and until such time as operations cease at the Site,
Respondent shall follow the Best Management Practices ("BMPs") listed
below. Specifically, Respondent shall abide
by the following:
a. Char
Management
i.
The
Char must be heat reduced during the process using a combination of steam
cooling, water jacketed char coolers which are also infused with steam, dry
auguring, air drop cooling into a steel container, auguring and air dropping
into a heavy Mylar bag within a Gaylord shipping container at less than 120
degrees F;
ii.
Prior
to sealing the Mylar bag and removing the container from the filling station,
the container must be checked for any hot spots with an infra red gun and be
less than 120 degrees F;
iii.
Sealed
containers will be placed along the concrete and steel wall in the receiving
area for at least 24 hours and checked at least twice during that period with
an infra red gun for hot spots;
iv.
An
increase in the temperature of the char containers shall trigger corrective action. Char containers shall be removed or isolated from
other containers in storage;
v.
After
sealed containers have been held and checked, they may be placed in the storage
barn, separated by at least 8 feet from wood feedstock material;
vi.
All
containers must be separated by an adequate fire lane when in storage;
vii.
A
radio controlled smoke detector that broadcasts to the plant must be used in
the storage area at all times and checked at least monthly to assure it is
operational
viii.
A
fire extinguisher shall be at every man door of the storage barn and certified
operational; and
ix.
When
the plant is not operational, it shall maintain a fire watch to check for
smoldering, smoke alarms, and for hot spots in the char or feedstock using an
infra red device.
b. No production
operations shall occur on weekends or on federal holidays. The plant may start heating on the third
shift on Sunday, but shall not start feeding production rates of feedstock
until Monday at 7 AM. The plant shall turn
off all production feeding no later than 12:00 PM (noon) on Friday afternoon.
c. Noise Levels
i.
Measure
noise levels at specific locations throughout the interior and exterior of the
plant, while in production mode (e.g. wood drying unit, pyro unit, centrifuge,
baghouse, west and south property lines, etc.);
ii.
Record
measured noise levels in daily operating record for each location; and
iii.
Develop
action levels for noise levels at each location.
iv.
Noise
from safety relief valve (fike valve) discharges upon cooling or heating are
allowed, but any occurrence must be logged and reported to IDEM Northern
Regional Office at 574-245-4871 to assure emissions from such releases are
captured.
d. Spills/Releases
i. Report any
spill reportable under the spill rule, 327 IAC 2-6.1, to any applicable local
emergency or health authorities as well as to IDEM at 877-233-7745; report any
other spills/releases, including, but not limited to, tank overfills into
containment, to the IDEM Northern Regional Office at 574-245-4871.
ii. Document all spills/releases in the
operating record; and
iii. Monitor and record tank levels on a
daily basis.
e. Develop and
implement a written QA/QC program for screening of glycerin used for quench of
pyrolysis gasses within fifteen (15) days of the Effective Date.
f. Complaints
i. Record all
complaints (Regardless of type, noise, odor, etc.) in daily operating record;
ii. Record
what processes are being conducted at the time the complaints are registered;
iii. IDEM will notify
Respondent of all complaints the Agency receives for Respondent to record in the
daily operating record; and
iv. Respondent
shall investigate and to the extent possible mitigate odors when complaints are
received.
g. Install
a windsock to identify wind direction to assist in identification of possible
sources of odor and impact on downwind properties. Respondent shall document odor complaints
received from citizens and IDEM.
h. Only wood
chips and sealed containers of char which have passed through the assurance procedures
in 6a above may be stored in the outer storage building (no hot or cooled loads
of bio char, or oils can be mixed with the wood stored there).
7. In regards
to Finding 9 i and ii, Respondent will take up to five (5) samples for VOCs in
the areadirectly in back of the plant that yielded reportable levels of
naphthalene and two other components of hydrocarbon from an earlier
sampling. The precise location, number
and depth of the samples will be defined during a site visit between IDEM and
Respondent within five (5) working days of the Effective Date.
8. Upon
the Effective Date, Respondent shall comply with FESOP
Permit No. 085-26494-00115, Condition C.4, Open Burning and 326 IAC 4-2. Specifically, Respondent shall not open burn
any material except as provided in 326 IAC 4‑1‑3, 326 IAC 4‑1‑4
or 326 IAC 4‑1‑6.
9. Upon the Effective Date of Permit No.
28516, Respondent shall comply with FESOP Permit No. 085-28516-00115.
10. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Brenda Lepter, Enforcement Case
Manager |
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Office of Land Quality – Mail Code
60-02L |
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Indiana Department of
Environmental Management |
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11. Respondent
is assessed a civil penalty of Nine Thousand Dollars ($9,000) for solid waste violations
and Two Thousand Four Hundred Dollars ($2,400) for air violations for a total
civil penalty of Eleven Thousand Four Hundred Dollars ($11,400). Within
thirty (30) days of the Effective Date of the Agreed Order, Respondent shall
pay a portion of this penalty in the amount of Six Thousand Nine Hundred
Dollars ($6,900). Said penalty amount
shall be due and payable to the Environmental Management Special Fund. In lieu
of payment of the remaining civil penalty, Respondent shall perform and
complete a Supplemental Environmental Project (“SEP”). Respondent estimates that this SEP will cost
Nine Thousand Dollars ($9,000). Within
thirty (30) days of completing this SEP, Respondent shall submit written notice
and documentation to IDEM which substantiates all actions taken and costs
incurred with respect to the SEP. In the
event that the cost of the SEP is less than Nine Thousand Dollars ($9,000), Respondent
shall pay fifty percent (50%) of the difference between the proposed
cost of the SEP and the actual cost of the SEP.
As a Supplemental Environmental
Project, Respondent shall plant evergreen trees between the plant and the
railroad. Respondent shall provide
documentation of the planting of the trees through submittal of a bill of sale
and photographs of the trees by no later than August 30, 2010. Implementation of this SEP will provide a
visual and sound barrier between the plant and the neighboring homes.
In the event that Respondent does
not complete the SEP by August 30, 2010, the full amount of the civil penalty
as stated above, plus interest established by IC 24-4.6-1-101 on the remaining amount,
less the portion of the civil penalty Respondent has already paid, will be due
within fifteen (15) days from Respondent's receipt of IDEM’s notice to
pay. Interest, at the rate established
by IC 24-4.6-1-101, shall be calculated on the amount due from the date which
is thirty (30) days after the Effective Date of this Agreed Order until the
full civil penalty is paid.
12. In the event the terms and conditions of
the following paragraphs are violated, Complainant may assess and Respondent
shall pay a stipulated penalty in the following amount:
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Failure
to Comply with Order paragraph No. 2 |
$1,000
per day |
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Failure
to Comply with Order paragraph No. 3 |
$1,000
per day |
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Failure
to Comply with Order paragraph No. 6 |
$100
per each BMP not followed per day |
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Failure
to Comply with Order paragraph No. 4 |
$1,000
per week. |
13. 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. 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.
14. 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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15. This
Agreed Order shall apply to and be binding upon Respondent and its successors
and assigns. Respondent’s signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership, corporate, or
partnership status of Respondent shall in any way alter its status or
responsibilities under this Agreed Order.
16. 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.
17. 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.
18. 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 its obligation to comply with
the requirements of its applicable permit or any applicable Federal or State
law or regulation.
19. 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.
20. 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.
21. 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.
22. This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed:______________________ |
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Office of Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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TECHNICAL RECOMMENDATION: |
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Department of Environmental Management |
COUNSEL FOR RESPONDENT: |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed:______________________ |
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Office of Land Quality |
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Title: ________________________ |
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By: _________________________ |
COUNSEL FOR COMPLAINANT: |
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Phil Perry,
Chief |
For the Indiana Department of
Environment Management |
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Compliance
and Enforcement Branch |
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Office of Air Quality |
By: _______________________ |
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Julie Lang |
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Deputy Attorney
General |
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Date:
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APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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For the
Commissioner: |
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Signed on
7/6/2010 |
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Bruce H Palin |
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Assistant
Commissioner |
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Office of
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