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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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Complainant, |
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v. |
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Case No. 2020-27103-S |
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garrett 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 Indiana Code (“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 IC
13-13-1-1.
2.
Respondent is Garrett LLC (“Respondent”), the
owns/operates the former Dalton Foundry, parcel number 57-09-04-400-482.000-004
(“Foundry”) located at 200 West Ohio Street, in Kendallville, Noble County,
Indiana (“Site”).
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 (“NOV”) to:
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Michael E. Heitz, Member |
Cory Heitz, Member |
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Garrett LLC |
Garrett LLC |
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588 Central Avenue |
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Lexington, KY 40502 |
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Rosie Miller, Registered Agent |
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Garrett LLC |
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1600 Kammerer Rd. |
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Kendallville, IN 46755 |
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5.
The
February 12, 2020, inspection resulted in the issuance of a Violation Letter dated
February 19, 2020.
6.
During
an investigation including a record review and inspection on February 12, 2020 conducted by a representative of IDEM, the following
violations were found:
a. Pursuant to 329 IAC 10-4-4, the owner
of real estate upon which an open dump is located is responsible for the
following:
(1)
Correcting and controlling any nuisance
conditions that occur as a result of the open
dump. Correction and control of nuisance
conditions must include:
A.
Removal of all waste from the area of the open
dump and disposal of such wastes in a solid waste land disposal facility
permitted to accept the waste; or
B.
Other methods as approved by the commissioner.
(2)
Eliminating any threat to human health or the
environment.
As noted during the record review, Respondent
purchased the property in July 2014 and has not yet complied with the
requirements of 329 IAC 10-4-4.
b. Pursuant to 329 IAC 10-4-3, open
dumping and open dumps, as those terms are defined in IC 13-11-2-146 and IC
13-11-2-147, are prohibited.
As noted during the inspection, foundry
waste was disposed at the Site so as to constitute an
open dump. Additionally, foundry waste appeared to be
leaving the property via drainage ditches on-site and leachate also appears to
be entering the ditches.
c.
Pursuant
to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of contaminants
or solid waste upon the land, except through the use of
sanitary landfills, incineration, composting, garbage grinding, or another
method acceptable to the board.
As noted during the inspections,
Respondent caused and/or allowed contaminants and/or solid waste to be
deposited at the Site in a method unacceptable to the board. Specifically, exposed foundry sand waste was present
throughout the property. Additionally, foundry waste appeared to be leaving the
property via drainage ditches on-site and leachate also appears to be entering
the ditches.
d.
Pursuant
to 329 IAC 10-4-2, no person shall cause or allow the storage, containment,
processing, or disposal of solid waste in a manner which creates a threat to
human health or the environment, including the creating of a fire hazard,
vector attraction, air or water pollution, or other contamination.
As noted during the inspection, exposed
foundry sand waste was present throughout the property. Additionally, foundry
waste appeared to be leaving the property via drainage ditches on-site and
leachate also appears to be entering the ditches.
e.
Pursuant
to IC 13-30-2-1(5), no person shall dump or cause or allow the open dumping of
garbage or any other solid waste in violation of rules adopted by the board.
As noted during the inspection, foundry
waste was disposed at the Site to constitute an open dump. Additionally,
foundry waste appeared to be leaving the property via drainage ditches on-site
and leachate also appears to be entering the ditches.
7.
On
January 18, 2022, IWM Consulting Group submitted a Closure Plan on behalf of
Respondent.
8.
Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the
settlement reached, Respondent acknowledges
notice of this right and 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 the statutes and rules listed in the
findings of fact above.
3.
Within one (1)
year of the Effective Date,
Respondent shall implement closure requirements to address the waste deposited
on the Site. Specifically, Respondent shall:
a. Clear
trees and large vegetation and grade the surface to create a minimum of 2%
slope and a maximum of 33% slope. Other slopes may be acceptable if use of the
property and alternative cover is proposed and approved by IDEM. If other
alternatives are proposed and approved by IDEM, the proposal shall demonstrate
that erosion can be controlled on the steeper slopes, or no ponding of water
will occur on the flatter slopes. This may include working around the easement
for the existing power lines.
b. Establish
soil cover over exposed waste unless an alternative cover is proposed and
approved by IDEM. IDEM will accept, at a
minimum, eighteen inches of clay-type soil, although two feet of clay-type soil
is recommended. Respondent may place the
eighteen inches in stages as the soil becomes available, provided erosion
control methods are implemented, and the soil is placed within one year.
c. The
final cover shall have a maximum soil loss is of 5 tons per acre per year based
on the Universal Soil Loss Equation, as required by 329 IAC 10-30-3.
d. Establish
vegetation over the covered waste area.
e.
Once at least
eighteen inches of clay-type soil has been placed, graded, and seeded,
Respondent shall submit to IDEM within thirty (30) days of completing Orders
3.b., 3.c., and 3.d. the required closure documentation. The documentation
shall include: as-built grading plan depicting waste
boundaries; verification of the soil cover thickness by probes, hand auger, or
test pits; and minimum number of borings or holes should be two per acre.
f. Any post-closure use of the property
requires IDEM approval.
g. Prepare
an operational and maintenance (“O&M”) plan. The O&M plan, at a minimum, shall include:
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Mowing as needed,
typically twice per year.
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Maintain the silt
fence around the soil covered area until vegetation is established.
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Maintain the
vegetative cover.
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Inspect at least
2 times per year for erosion; any erosion rills and gullies deeper than nine
(9) inches that have formed must be filled, graded, reseeded, and mulched, or
otherwise stabilized.
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Submit biannual
inspection reports to IDEM within 60 days of the date of inspection.
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No trees, woody
shrubs, or deep-rooted plants may be grown on the vegetated cover unless it is
approved by the commissioner based on a demonstration that the roots will not penetrate into the waste layer.
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No foundry waste
may be exposed (visible) at any time.
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A description of
the storm water quality measures to be implemented to control or minimize
pollutants associated with storm water run-off.
4.
Within thirty
(30) days of the Effective Date, Respondent shall submit to IDEM for review
prior to recording a draft environmental restrictive covenant (“ERC”) for the
area where waste was deposited.
Determining the area where waste was deposited may require delineation
of the solid waste boundaries, which may require test pits. After the ERC is
approved by IDEM, Respondent shall record and send proof of recording within
thirty (30) days. The ERC shall include the following terms:
a. The
ERC must identify appropriate restrictions to ensure the soil cap and vegetated
cover is not damaged, which shall include ongoing compliance by any future
owners with the approved operational and maintenance plan.
b.
The ERC shall
also state that groundwater may not be withdrawn from the Site for drinking
water purposes.
c.
The existing
wells on Respondent’s property must not be altered or destroyed until approved
by IDEM. Once approved by IDEM, the
groundwater monitoring wells shall be closed in accordance with IDNR 312
13-10-2.
5.
Within thirty
(30) days of the Effective Date, Respondent shall submit to IDEM a legal
description of the Site, which shall include a correct description of the
southwest boundary.
6.
Within
sixty days (60) of the Effective Date, Respondent shall provide closure and
post-closure cost estimate, and an original copy of financial assurance
established for the amount established by the cost estimate.
7.
Upon
the Effective Date, Respondent shall cease releases of foundry waste and
leachate into the on-site drainage ditches.
8.
All
submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent
to:
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Christina
Halloran, Enforcement Case Manager |
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Office
of Land Quality |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
9.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Twenty-Two
Thousand Five Hundred Dollars ($22,500). Within thirty (30) days of the
Effective Date, Respondent shall pay a portion of this penalty in the amount of
Four Thousand Five Hundred Dollars ($4,500) to the “Environmental
Management Special Fund.”
In lieu of payment of the remaining
civil penalty, Respondent shall make a cash payment to the Indiana Finance
Authority ("IFA") to fund a Supplemental Environmental Project
("SEP") of activities related to brownfield development at a
brownfield site ("Brownfield Site") in Noble County, Indiana.
Respondent will make a payment in the amount of Eighteen Thousand Dollars $18,000
to fund SEP activities at the Brownfield Site. Respondent shall make such
payment to the IFA within thirty (30) days of the Effective Date. Payment to
the IFA satisfies Respondent's obligation to undertake a SEP to offset a
portion of the civil penalty assessed in this matter. Implementation of this
SEP will benefit the community by rejuvenating neighborhoods, increasing the
tax base, mitigating threats to human health and the environment, and/or
reducing blight. In the event that the civil penalty
is not paid within thirty (30) 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.
The Brownfield Site at which some or all of the SEP proceeds will be spent will be determined by
the Brownfields Program for a site located in Noble County, Indiana. The
designation of this Brownfield Site to receive the SEP proceeds is agreed upon
by the Complainant, Respondent, and the IFA. The IFA will account for the SEP
payment and the Brownfields Program will oversee the work undertaken at the
Brownfield Site funded by the SEP proceeds. If SEP proceeds remain following a
determination by the Brownfields Program that no additional SEP proceeds are
needed at the Brownfield Site, the Brownfields Program will select another site
or sites in Noble County at which work will be funded with the balance of the
SEP proceeds. The IFA will notify IDEM's Enforcement Case Manager when SEP-funded
activities at the Brownfield Site (and any other site at which activities may
be funded with SEP proceeds) are complete.
In the event
that
Respondent does not make its SEP payment within thirty (30) days of the
Effective Date, the full amount of the civil penalty as stated in this
paragraph, 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 fr
om 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.
Payment of the SEP is payable by check
to the "Indiana Finance Authority." The text "SEP-
Indianapolis" and the Case Numbers of this action shall be included in the
memo line of the check. The check shall be mailed to:
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Meredith
Gramelspacher |
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Indiana
Brownfields Program - SEP 100 N. Senate Avenue |
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Room
1275 |
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Indianapolis,
Indiana 46204 |
Civil and stipulated penalties are
payable to the “Environmental Management Special Fund” by:
Mail:
Civil 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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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
Online:
Accounts Receivable is accepting
payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM.
Under Online Services, click Online Payment options and follow the prompts. A
processing fee of $1 plus 1.99% will be charged for credit card payments.
A processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
Phone:
You may also call us at 317-234-3099 and
follow the instructions for Master Card, Visa or Discover payments. A
processing fee of $1 plus 1.99% will be charged for credit card payments. A
processing fee of $1.00 will be charged for eCheck
payments.
The Case Number is required to complete
the process.
10.
In
the event the terms and conditions of the following paragraphs are violated,
Complainant may assess and Respondent shall pay
stipulated penalties in the following amounts:
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Paragraph |
Stipulated Penalty |
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Order
paragraph #3 |
$100
per week late |
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Order
paragraph #4 |
$100 per
week late |
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Order
paragraph #5 |
$100 per
week late |
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Order
paragraph #6 |
$100 per
week late |
11.
Stipulated
penalties shall be due and payable no later than the thirtieth day after
Respondent receives written notice that Complainant has determined a stipulated
penalty is due; the thirtieth day being the “Due Date.” Complainant may notify
Respondent at any time that a stipulated penalty is due. Failure to notify
Respondent in writing in a timely manner of a stipulated penalty assessment
shall not waive Complainant’s right to collect such stipulated penalty or
preclude Complainant from seeking additional relief against Respondent for
violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief includes
any remedies or sanctions available pursuant to Indiana law, including, but not
limited to, civil penalties pursuant to IC 13-30-4.
12.
In
the event that the
monies due to IDEM pursuant to this Agreed Order are not paid on or before
their Due Date, Respondent shall pay interest on the unpaid balance at the rate
established by IC 24-4.6-1. The interest shall be computed as having accrued
from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental
Management Special Fund, and shall be payable to IDEM
in the manner specified in Paragraph 9, above.
13.
Signatories
to this Agreed Order certify that they are fully authorized to execute this
Agreed Order and legally bind the party they represent.
14.
This
Agreed Order shall apply to and be binding upon Respondent and all successors
and assigns. Respondent shall provide a copy of this Agreed Order, if in force,
to any subsequent owners, successors, or assigns before ownership rights are
transferred.
15.
No
change in ownership, corporate, or partnership status of Respondent shall in
any way alter the Respondent’s status
or responsibilities under this Agreed Order.
16.
Respondent
shall ensure that all contractors, firms, and other persons performing work
under this Agreed Order comply with the terms of this Agreed Order.
17.
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.
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 the obligation to comply with the
requirements of any applicable permits or any applicable Federal or State laws
or regulations.
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 violations specified in the NOV.
21.
Nothing
in this Agreed Order shall prevent IDEM or anyone acting on its behalf from
communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. 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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Jennifer
Reno, Section Chief |
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Land 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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COUNSEL FOR THE INDIANA FINANCE |
COUNSEL FOR RESPONDENT: |
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AUTHORITY: |
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For the Indiana Brownfields Program |
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By:
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By:
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Printed: ______________________ |
Printed: ______________________ |
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Title: ________________________ |
Title: ________________________ |
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Date: _______________________ |
Date: _______________________ |
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COUNSEL &/OR AUTHORIZED |
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REPRESENTATIVE: |
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For the City of Kendallville: |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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Date: _______________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For the
Commissioner: |
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Signed
10/11/2022_____________ |
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Peggy Dorsey, Assistant Commissioner |
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Office of
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