STATE OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. LAND-O-SUN
DAIRIES, LLC, 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 Indiana created by Indiana Code (IC) 13-13-1-1.
2. Respondent is Land-O-Sun Dairies, LLC
(Respondent), which owns and operates a dairy product manufacturing facility
with an industrial wastewater treatment facility located at 400 South Chamber
Road, Decatur, Adams County, Indiana (the Site).
3. Respondent is authorized by Industrial
Wastewater Permit (IWP) Permit Number INP000197 (the Permit) to discharge
wastewater treated in accordance with the terms and conditions of the IWP
Permit from its industrial wastewater treatment facility into the Decatur
Publicly Owned Treatment Works (POTW) from Outfall 001. Outfall 001 is designated as the combined wastestreams at the point of discharge to the POTW.
4. IDEM has
jurisdiction over the parties and the subject matter of this action.
5. Pursuant to
IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail to:
Land-O-Sun
Dairies, LLC |
Land-O-Sun
Dairies, LLC |
Brett
Johnson, VP Operations East |
CT
Corporation System |
1126
Kilburn Avenue |
251
E. Ohio St., Suite 1100 |
Rockford,
IL 61101 |
Indianapolis,
IN 46204 |
6. Pursuant to 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 into the environment or any publicly owned
treatment works in any form that causes or would cause pollution.
Pursuant to 327 IAC 2-1-6(a), 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 that do any of the following:
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.
During an inspection conducted by IDEM
staff on March 17, 2010, it was observed that wastewater had overflowed from
Respondent's treatment tanks into the secondary containment area at the
Site. The cleanup of this spill appeared
to have allowed partially treated waste to be washed off site with storm water
into a storm water drainage swale, resulting in the potential discharge of
industrial substances into waters of the State in violation of IC 13-30-2-1(1)
and 327 IAC 2-1-6(a).
7. Pursuant
to 327 IAC 2-6.1-4(11), 'objectionable substances' means substances that
are: (A) of a quantity and a type; and
(B) present for a duration and in a location; so as to
damage waters of the state.
Pursuant
to 327 IAC 2-6.1-4(15), a 'spill' means any unexpected, unintended, abnormal,
or unapproved dumping, leakage, drainage seepage, discharge or other loss of
petroleum, hazardous and/or otherwise objectionable substance which enters or
threatens to enter the waters of the state.
Pursuant
to 327 IAC 2-6.1-5, spills of objectionable substances as defined in 327 IAC
2-6.1-4(11) to soil within the facility boundary, and spills to surface waters,
must be reported.
Pursuant
to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any
facility from which a spill occurs is required, upon discovery of a reportable
spill to soil or surface waters of the state, to do the following:
a. Contain the spill, if possible, to
prevent additional spilled material from entering the waters of the state.
b. Undertake or cause others to undertake
activities needed to accomplish a spill response.
c. As soon as possible, but within two
hours of discovery, communicate a spill report to IDEM.
d. Submit to the IDEM, a written copy of
the spill report if requested in writing by the department.
e. Except from modes of transportation
other than pipelines, exercise due diligence and document attempts to notify
the following:
(1) For spills to surface water that cause
damage, the nearest affected downstream water user located within ten miles of
the spill and in the state of Indiana; and
(2) For spills to soil outside the facility
boundary, notify the affected property owner or owners, operator or operators,
or occupant or occupants.
Pursuant
to Part II.A.6 of the Permit, Respondent is required to comply with the spill
reporting, containment, and response requirements in accordance with 327 IAC
2-6.1.
Subsequent to the inspection conducted
by IDEM staff on March 17, 2010, it was determined that the spill of wastewater
described in Paragraph 6 above constituted a reportable spill event as defined
in 327 IAC 2-6.1 and Part II.A.6 of the Permit, and that Respondent failed to
report, contain, and perform a proper spill response, in violation of 327 IAC
2-6.1-5, 327 IAC 2-6.1-7, and Part II.A.6 of the Permit.
8. Pursuant to 327 IAC 5-2-8(1) and Part
II.A.1 of the Permit, Respondent is required to comply with all conditions of
the Permit. Any permit noncompliance
constitutes a violation of the Clean Water Act and IC 13 and is grounds for an
enforcement action.
Pursuant to Part I.A.1.3 of the Permit,
Respondent is required to monitor BOD5 and TSS using 24-hour
composite flow-proportional samples consisting of aliquots withdrawn throughout
the daily discharge period. The aliquots
may be: (i)
uniform aliquots withdrawn at uniform flow intervals; or (ii) flow-proportional
aliquots withdrawn at uniform time intervals.
During the inspection conducted by IDEM
staff on March 17, 2010, it was observed that there were flow meters installed
at both the process line and the sanitary line as they discharge into the final
manhole, which together measure the total discharge flow. However, the reading from those meters are
used for reporting to the City and the on-site operator does not have access to
those readings and does not perform 24-hour composite flow-proportional
sampling, in violation of Part I.A.1.3 of the Permit, 327 IAC 5-2-8(1) and Part
II.A.1 of the Permit.
9. Pursuant to Part I.A.1.[1] and [4] of
the Permit, Outfall 001 is designated as the combined wastestreams
at the point of discharge to the POTW, and the flow at the sample site must be
measured and recorded by valid flow-measurement device, not estimated.
As noted above in Paragraph 8, during
the inspection conducted by IDEM staff on March 17, 2010, it was observed that
the total discharge flow readings were not available to the on-site operator
and the flow readings that have been recorded on Monthly Monitoring Reports
(MMRs) have consisted of only the wastewater treatment system discharge, and
not the combined wastestreams, in violation of Part
I.A.1.[1] and [4] of the Permit, 327 IAC 5-2-8(1) and Part II.A.1 of the
Permit.
10. Pursuant to 327 IAC 5-21-6(a) and Part I.A
of the Permit, Respondent is required to comply with the effluent limitations
contained in the Permit that are applicable to the discharges from Outfall 001.
IDEM records, including
Discharge Monitoring Reports (DMRs) and MMRs submitted by Respondent to IDEM
for the period from October 1, 2008 through March 31, 2010, indicate that
Respondent failed to comply with effluent limitations contained in the Permit,
in violation of 327 IAC 5-21-6(a), 327 IAC 5-2-8(1),
and Part I.A and Part II.A.1 of the Permit, as
follows:
A. The
daily maximum concentration discharge limitation for BOD5 was
violated during one or more days during December 2008, January, March, June,
and July of 2009, and January and March 2010.
B. The
daily maximum concentration discharge limitation for TSS was violated during
one or more days during October and November 2008, February, March, April, June,
October, November, and December 2009, and January 2010.
C. The
daily maximum concentration discharge limitation for Oil and Grease was
violated during one or more days during March 2009, and January 2010.
11. Pursuant to 327 IAC 5-21-6(c) and Part
II.A.5 of the Permit, if Respondent does not or will not be able to comply for
any reason with any discharge limitation specified in the Permit, Respondent is
required to provide IDEM and the City of Decatur with the following information
in writing, within twenty-four (24) hours of becoming aware of the noncompliance.
A. A
description of the discharge and cause of noncompliance.
B. The period of noncompliance, including
exact dates and times of the noncomplying event and
the anticipated time when the discharge will return to compliance.
C. Steps being taken to reduce, eliminate,
and prevent recurrence of the noncomplying discharge.
A record review indicates that
Respondent failed to notify IDEM within 24 hours of becoming aware of any of
the violations of effluent limitations referenced in Paragraph 7 above, in
violation of Part II.A.5 of the Permit, 327 IAC 5-2-8(1) and Part II.A.1 of the
Permit.
12. Prior to October 15, 2010, Respondent
installed and initiated operation of a valid flow measurement device and is now
taking BOD5 and TSS 24-hour composite flow-proportional samples and
is monitoring and recording the combined wastestream
at Outfall 001.
13. 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 statutes,
rules, and permit conditions listed in the findings above at issue.
3. Respondent shall undertake the actions
specified in this Order in order to prevent future wastewater spills from its
industrial wastewater treatment facility onto the ground or into any waters of
the state.
4. Should a reportable spill of wastewater
occur at the Site, Respondent shall comply with 327 IAC 2-6.1-5 and 7, and
contain the spill, accomplish a proper spill response, communicate a spill
report to IDEM as soon as possible but within 2 hours of discovery, submit a
written copy of the spill report if it is requested by IDEM, and notify downstream
water users and/or affected parties as required.
5. Respondent shall continue to take BOD5
and TSS 24-hour composite flow-proportional samples as required by the Permit,
maintain records of the monitoring records as required by Part I.C.4 of the
Permit, and make such records available for review as required by Part I.C.6 of
the Permit.
6. Respondent shall continue to monitor
and record the combined wastestream at Outfall 001 as
required by Part I.A.1.[1] and [4] of the Permit.
7. If Respondent is not or will not be
able to comply for any reason with any discharge limitation specified in the Permit,
Respondent will provide IDEM and the City of Decatur with the information
required by Part II.A.5 of the Permit within 24 hours of becoming aware of the
noncompliance.
8. Within 30 days of the Effective Date,
Respondent shall complete a comprehensive analysis of its industrial wastewater
treatment facility and determine whether or not it can maintain consistent compliance
with its discharge limitations.
If Respondent determines that its
wastewater treatment facility can maintain consistent compliance with its
discharge limitations, then Respondent shall, within 30 days of the Effective
Date, submit written notification to IDEM that it has completed the analysis
and has determined that its facility can consistently meet its discharge
limitations, and Respondent will immediately begin the 6 month Performance
Demonstration required by Paragraph 9 below.
If Respondent determines that its
wastewater treatment facility can not maintain consistent compliance
with its discharge limitations, Respondent shall, within 30 days of the
Effective Date, submit notification to IDEM that it has completed the analysis
and has determined that its facility can not consistently meet its discharge
limitations, and within 60 days of the Effective Date, Respondent shall develop
and submit to IDEM for approval a Compliance Plan (“CP”) which identifies
actions that Respondent will take to achieve and maintain consistent compliance
with its discharge limitations required in its IWP Permit. The CP shall include an implementation and
completion schedule, including specific milestone dates.
9. Upon Respondent's submittal of notification
that it has completed the analysis and has determined that its facility can
consistently meet its discharge limitations pursuant to Paragraph 8 above, or
upon completion of the upgrades set forth in the CP pursuant to Paragraph 8
above, Respondent shall demonstrate 6 consecutive months of compliance (“Initial
Compliance Demonstration”) with no spills of wastewater at the Site and no
discharge limitation exceedances. During the Initial Compliance Demonstration period,
Respondent will not be subject to stipulated penalties, as specified below, for
any discharge limitation exceedance.
In the event that Respondent fails to successfully
complete the 6 month Initial Compliance Demonstration, Respondent shall, within
60 days of becoming aware that the Initial Compliance Demonstration cannot be
achieved, develop and submit to IDEM, for approval, an Additional Action Plan
which identifies the additional actions that Respondent will take to prevent
spills and to achieve and maintain compliance with the discharge limitations in
its IWP Permit. The Additional Action
Plan, if required, shall include an implementation and completion schedule,
including specific milestone dates.
Upon completion of the Additional
Action Plan, Respondent shall demonstrate 6 consecutive months of compliance
("Final Compliance Demonstration") with no spills of wastewater at
the Site and no discharge limitation exceedances. During the Final Compliance Demonstration
period, Respondent may be subject to stipulated penalties, as specified below,
for any discharge limitation exceedance.
10. The plans required by Paragraphs 8 and 9
above are subject to IDEM approval. In
the event IDEM determines that any plan submitted by Respondent is deficient or
otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM
in accordance with IDEM’s notice. After three submissions of such plan by
Respondent, IDEM may modify and approve any such plan and Respondent must
implement the plan as modified by IDEM.
Respondent, upon receipt of written
notification from IDEM, shall implement the approved plan and according to the
milestone dates therein. The approved CP
and Additional Action Plan shall be incorporated into the Agreed Order and
shall be deemed an enforceable part thereof.
Failure by Respondent to submit any plan by the specified date, or to meet any of the milestones in the approved plan may
subject Respondent to stipulated penalties as described below. Failure to achieve compliance at the
conclusion of work under an Additional Action Plan may subject Respondent to
additional enforcement action.
11. Beginning on
the Effective Date and continuing until the successful completion of the
requirements of this Agreed Order, Respondent shall, at all times, operate its
existing wastewater treatment plant as efficiently and effectively as reasonably
possible, and may be subject to stipulated penalties for its failure to comply
with the discharge limitation requirements of the Permit.
12. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
Terry Ressler, Enforcement Case
Manager |
Indiana Department of Environmental
Management |
Office of Water Quality – Mail Code 60-02W |
100 North Senate Avenue, Room 1255 |
Indianapolis, IN 46204-2251 |
13. Respondent
is assessed a civil penalty of Eighteen Thousand Two Hundred and
Fifty-Seven Dollars ($18,257). Within thirty days of the Effective
Date of the Agreed Order, Respondent shall pay a portion of this penalty in the
amount of $3,651. 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 $50,800. Within 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 $43,817, Respondent shall pay one-third of
the difference between the proposed cost of the SEP ($43,817) and the actual
cost of the SEP.
As
a Supplemental Environmental Project, Respondent shall install automated
flocculation-inducing valves at Respondent's pretreatment facility at its
a dairy product manufacturing facility at the Site, and develop and submit a
document to a national trade journal for national publication illustrating
transferable concepts on how to maximize performance of pipe flocculators with automated flocculation-inducing
valves. Respondent shall complete the SEP by no later than one
year from the Effective Date of this Agreed Order. Implementation of this SEP is expected to
result in up to 40 percent reduction in effluent TSS and BOD concentrations
discharged to the City of Decatur sewer system, allowing the City of Decatur to
have greater flexibility in accommodating wasteloads
from others. The publication from this
SEP should enable practitioners nation-wide to significantly improve effluent
BOD and TSS quality being discharged from treatment units (particularly DAFs)
downstream of pipe flocculators.
In
the event that Respondent does not complete the SEP within one year from the
Effective Date of this Agreed Order, the full amount of the civil penalty as
stated in paragraph 13 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 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 days after the Effective Date until the full civil
penalty is paid.
14. 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:
Paragraph |
Violation |
Stipulated Penalty |
3 |
For any reportable wastewater spill
outside secondary containment. |
$300 per spill |
4 |
Failure to comply with any
requirement of 327 IAC 2-6.1-5 and 7. |
$300 per violation |
5 |
Failure
to take 24-hour composite flow-proportional samples of the combined wastestream at Outfall 001, maintain
records, and/or make such records available for review. |
$300 per violation |
7 |
Failure to provide IDEM and the City
of Decatur with the information required by Part II.A.5 of the Permit within
24 hours of becoming aware of any exceedance of discharge
limitation specified in the Permit. |
$300 per violation |
8 |
Failure to complete the comprehensive
analysis and submit notification that it has completed the analysis and has
determined that its facility can, or can not, consistently meet its discharge
limitations within 30 days of the Effective Date, unless an extension has
been granted. |
$300 per each week late |
8 |
If Respondent determines that its
facility can not consistently meet its discharge limitations, failure to
submit the CP, as required, within 60 days of the Effective Date, unless an
extension has been granted. |
$300 per each week late |
9 |
Failure to submit or modify the
Additional Action Plan, if required, within the given time period, unless an
extension has been granted. |
$300 per each week late |
10 |
Failure to revise and resubmit the CP
or Additional Action Plan if required. |
$300 per each week |
8
&10 |
Failure to meet any milestone date
set forth in the approved CP or Additional Action Plan if required, unless an
extension has been granted. |
$500 per each week late |
9
& 11 |
Failure to comply with the discharge
limitation requirements of the Permit after the start of the Final
Compliance Demonstration, unless an extension has been granted. |
$500 per each violation |
15. Stipulated penalties shall be due and
payable within 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.
16. 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:
Indiana Department of Environmental
Management |
Cashier – Mail Code 50-10C |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
17. This Agreed Order shall apply to and be
binding upon Respondent, 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.
18. Force
majeure, for purposes of this Agreed Order, is defined as any event arising
from causes totally beyond the control and without fault of Respondent that delays or prevents the performance of any obligation
under this Agreed Order despite Respondent’s best efforts to fulfill the
obligation. The requirement that
Respondent exercise “best efforts to fulfill the obligation” includes using
best efforts to anticipate any potential force
majeure event and best efforts to address the effects of any potential force majeure event (1) as it is
occurring and (2) following the potential force
majeure event, such that the delay is minimized to the greatest extent
possible. Force majeure does not include (1) changed business or economic
conditions; (2) financial inability to complete the work required by this
Agreed Order; or (3) increases in costs to perform the work.
Respondent shall notify IDEM by calling
the case manager within three (3) calendar days and by writing no later than
seven (7) calendar days after it has knowledge of any event which Respondent
contends is a force majeure. Such
notification shall describe (1) the anticipated length of the delay; (2) the
cause or causes of the delay; (3) the measures taken or to be taken by
Respondent to minimize the delay; and (4) the timetable by which these measures
will be implemented. Respondent shall
include with any notice all available documentation supporting its claim that
the delay was attributable to a force majeure.
Failure to comply with the above requirements shall preclude Respondent
from asserting any claim of force majeure for that event. Respondent shall have
the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force
majeure shall be made by IDEM.
If a delay is attributable to a force
majeure, IDEM shall extend, in writing, the time period for performance under
this Agreed Order, by the amount of time that is directly attributable to the
event constituting the force majeure.
19. 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.
20. 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 require that all contractors,
firms and other persons performing work under this Agreed Order comply with the
terms of this Agreed Order.
21. 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 permits or any applicable Federal or State law
or regulation.
22. 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.
23. 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 and/or this Order.
24. 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.
25. This Agreed Order shall remain in effect until
Respondent has complied with all terms and conditions of Order Paragraph Nos. 3
through 16 and IDEM issues a Resolution of Case letter.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
Land-O-Sun Dairies, LLC |
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By: ________________________ |
By: ________________________ |
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Mark W. Stanifer, Chief |
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Water Enforcement Section |
Printed: ______________________ |
Office of Water Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: ____________________ |
By: ______________________ |
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Date: _______________________ |
Date: ______________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS ______ DAY OF
_____________________, 20___. |
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For the Commissioner: |
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Signed on January 20, 2011 |
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Bruno Pigott |
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Assistant Commissioner |
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Office of Water Quality |