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STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No. 2022-28471-U |
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Lucky & ABI FAST TRACK 1 LLC, |
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Fast track 1 stop inc., and Kokan |
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Petroleum inc., |
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Respondents. |
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AGREED ORDER
Complainant
and Respondents 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. Respondents’ entry into this
Agreed Order shall not constitute a waiver of any defense, legal or equitable,
which Respondents 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.
Respondents are Lucky & Abi Fast Track 1
LLC, Fast Track 1 Stop Inc., and Kokan Petroleum Inc.
(“Respondents”), which own and operate the facility with Facility ID No. 2871,
located at 104 Lincolnway East, in LaPorte, LaPorte County,
Indiana (“Site”).
3. Respondents own and operate two 10,000-gallon
steel STiP-3 gasoline underground storage tanks (“UST”) installed November 12,
1991. The piping is fiberglass and pressurized.
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:
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Lakshmi
Priya Aravindan, Registered Agent for |
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Lucky
& Abi Fast Track 1 LLC |
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51287
Windy Willow Court |
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South
Bend, Indiana 46628 |
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Lucky
& Abi Fast Track 1 LLC |
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UST
Owner |
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104
East Lincolnway |
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LaPorte,
Indiana 46350 |
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Palwinder Singh, President and Registered Agent for |
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Fast
Track 1 Stop Inc. |
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52264
Fir Road |
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Granger,
Indiana 46530 |
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Fast
Track 1 Stop Inc. |
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UST
Operator |
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104
East Lincolnway |
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LaPorte,
Indiana 46350 |
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Gurmail
Singh, President and Registered Agent for |
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Kokan Petroleum Inc. |
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1402
Ashton Court |
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Goshen,
Indiana 46526 |
6.
During an investigation including an inspection
on December 29, 2021 conducted by a representative of
IDEM, the following violations were found:
a. Pursuant to 329 IAC 9-2-2(c), an owner
required to submit a notification under this section shall provide:
(1) a notification for each UST owned;
(2) complete information required on the form
for each UST owned; and
(3) if applicable, a separate notification
form for each separate place of operation at which the USTs are located.
As noted
during the inspection and subsequent records review, an updated notification
form was requested after a June 21, 2018
inspection. An updated form was not
received. Additionally, no notification
form was submitted upon a change in operator.
Please note, information on the most recent form (submitted October 11,
2016) was either incomplete or conflicts with information gleaned during the
December 29, 2021 inspection: no method of cathodic protection was listed, tanks
were incorrectly listed as compartmented, the methods listed for release
detection, piping delivery method, and overfill prevention protection equipment
were incorrect.
b. Pursuant to 40 Code of Federal Regulations
280.34, owners and operators of UST systems must cooperate fully with
inspections, monitoring and testing conducted by the implementing agency, as
well as requests for document submission, testing, and monitoring by the owner
or operator pursuant to section 9005 of Subtitle I of the Solid Waste Disposal
Act, as amended.
As noted during the inspection, Respondent
failed to submit the documentation requested by IDEM’s December 13, 2021 letter as required.
c.
Pursuant
to 329 IAC 9-8-11(b), an owner or operator of:
(1) twelve
(12) or fewer USTs shall demonstrate the ability to pay the applicable
deductible amount under IC 13-23-9-1.3; or
(2) more
than twelve (12) USTs shall demonstrate the ability to pay two (2) times the
applicable deductible amount under IC 13-23-9-1.3.
As noted during the
inspection, Respondent failed to demonstrate a current Financial Responsibility
mechanism.
d.
Pursuant
to 40 CFR 280.31(b), all UST systems equipped with cathodic protection systems
must be inspected for proper operation by a qualified cathodic protection
tester in accordance with the following requirements:
(1) Frequency.
All cathodic protection systems must be tested within 6 months of installation
and at least every 3 years thereafter or according to another reasonable time
frame established by the implementing agency; and
(2) Inspection
criteria. The criteria that are used to determine that cathodic protection is
adequate as required by this section must be in accordance with a code of
practice developed by a nationally recognized association.
As noted during the
inspection, results of any cathodic protection testing for all
of the USTs due in 2018 and 2021 were not provided.
Cathodic protection testing
dated August 15, 2022 submitted August 26, 2022.
e.
Pursuant
to 40 CFR 280.35(a)(1), spill prevention equipment (such as a catchment basin, spill bucket, or other spill
containment device) and containment sumps used for interstitial monitoring of
piping must prevent releases to the environment by meeting one of the
following:
(i) The
equipment is double walled, and the integrity of both walls is periodically
monitored at a frequency not less than the frequency of the walkthrough
inspections described in §280.36. Owners and operators must begin meeting
paragraph (a)(1)(ii) of this section and conduct a test within 30 days of
discontinuing periodic monitoring of this equipment;
or
(ii) The spill prevention equipment and
containment sumps used for interstitial monitoring of piping are tested at
least once every three years to ensure the equipment is liquid tight by using
vacuum, pressure, or liquid testing in accordance with one of the following
criteria:
(A) Requirements developed by the
manufacturer (Note: Owners and operators may use this option only if the
manufacturer has developed requirements);
(B) Code of practice developed by a
nationally recognized association or independent testing laboratory; or
(C) Requirements determined by the
implementing agency to be no less protective of human health and the
environment than the requirements listed in paragraphs (1)(1)(ii)(A) and (B) of
this section.
As noted during the
inspection, the equipment is not double-walled and documentation
of spill bucket test results was not provided.
Doumentation of spill prevention test date February
24, 2022 submitted July 21, 2022; however, the tester
signature was missing and the water level was too low invalidating the result.
Documentation of spill
bucket testing dated August 15, 2022 submitted August
26, 2022.
f.
Pursuant
to 40 CFR 280.35(a)(2), overfill prevention equipment must be inspected at
least once every three years. At a minimum, the inspection must ensure that
overfill prevention equipment is set to activate at the correct level specified
in § 280.20(c) and will activate when regulated substance reaches that level.
Inspections must be conducted in accordance with one of the criteria in
paragraph (a)(1)(ii)(A) through (C) of this section.
As noted during the
inspection, documentation of the
overfill prevention equipment inspection and/or testing results were not
provided.
g.
Pursuant
to 40 CFR 280.36(a)(1)(i), to properly operate and
maintain UST systems, not later than June 28, 2021, owners and operators must
conduct a walkthrough inspection every 30 days that, at a minimum, checks spill
prevention equipment and release detection equipment.
As noted during the
inspection, documentation detailing the
monthly walkthrough inspections was not provided.
Walkthrough
inspection for June 2022 submitted July 21, 2022.
h.
Pursuant
to 40 CFR 280.40(a)(3)(i), owners and operators of
UST systems must provide a method, or combination of methods, of release
detection that can detect a release from any portion of the tank and the
connected underground piping that routinely contains product; is installed and
calibrated in accordance with the manufacturer's instructions; and beginning on
June 28, 2021, is operated and maintained, and electronic and mechanical
components are tested for proper operation, in accordance with one of the
following: manufacturer's instructions; a code of practice developed by a
nationally recognized association or independent testing laboratory; or
requirements determined by the implementing agency to be no less protective of
human health and the environment than the two options listed in paragraphs
(a)(1) and (2) of this section. A test of the proper operation must be
performed at least annually and, at a minimum, as applicable to the facility,
cover the following components and criteria: automatic tank gauge and other
controllers: test alarm; verify system configuration; test battery backup.
As noted during the
inspection, documentation detailing the
annual automatic tank gauge (“ATG”) certification/testing was not provided.
Documentation
of ATG testing dated February 9, 2022 submitted July
21, 2022.
Documentation
of ATG testing dated August 15, 2022 submitted August
26, 2022.
i.
Pursuant
to 40 CFR 280.40(a)(3)(ii), owners and operators of UST systems must provide a method, or combination of methods,
of release detection that can detect a release from any portion of the tank and
the connected underground piping that routinely contains product; is installed
and calibrated in accordance with the manufacturer's instructions; and
beginning on June 28, 2021, is operated and maintained, and electronic and
mechanical components are tested for proper operation, in accordance with one
of the following: manufacturer's instructions; a code of practice developed by
a nationally recognized association or independent testing laboratory; or
requirements determined by the implementing agency to be no less protective of
human health and the environment than the two options listed in paragraphs
(a)(1) and (2) of this section. A test of the proper operation must be
performed at least annually and, at a minimum, as applicable to the facility,
cover the following components and criteria: probes and sensors: inspect for
residual buildup; ensure floats move freely; ensure shaft is not damaged;
ensure cables are free of kinks and breaks; test alarm operability and
communication with controller.
As noted during the
inspection, documentation detailing the
annual probes and sensors certification/testing was not provided.
Documentation
of probes and sensors testing dated February 9, 2022
submitted July 21, 2022.
j.
Pursuant to 40 CFR 280.41(a)(1),
considering previous Indiana rule at 329 IAC 9-3-1.3 (repealed
2018), tanks installed on or before September 2, 2009 must
be monitored for releases at least every 30 days using one of the methods
listed in § 280.43(d) through (i).
As noted during the
inspection, release detection records for the regular unleaded (“RUL”) gasoline
tank were not provided.
Documentatoin of testing dated February 9, 2022
(failed result) submitted July 21, 2022.
Documentation
of testing dated August 15, 2022 submitted August 26,
2022.
k.
Pursuant
to 40 CFR 280.41(b)(1)(i)(A), considering previous
Indiana rules at 329 IAC 9-2-1(2)(D) and 329 IAC 9-3-1.3 (both repealed
2018), pressurized underground piping installed on or before September 2, 2009 that routinely contains regulated substances must be
equipped with an automatic line leak detector conducted in accordance with §
280.44(a).
As noted during the
inspection, leak detector test results were not provided.
Documentation
of testing dated February 9, 2022 submitted July 21,
2022.
Documentation
of testing dated August 15, 2022 submitted August 26,
2022.
l.
Pursuant
to 40 CFR 280.41(b)(1)(i)(B), considering previous
Indiana rules at 329 IAC 9-2-1(2)(D) and 329 IAC 9-3-1.3 (both repealed 2018),
pressurized underground piping installed on or before September 2, 2009 that routinely contains regulated substances must have
an annual line tightness test conducted in accordance with § 280.44(b) or have
monthly monitoring conducted in accordance with § 280.44(c).
As noted during the
inspection, line tightness test results were not provided
and no monthly monitoring records were provided.
Documentation
of testing dated February 9, 2022 submitted July 21,
2022.
m.
Pursuant
to 40 CFR 280.240, not later than June 28, 2021, all owners and operators of
UST systems must ensure they have designated Class A, Class B, and Class C
operators who meet the requirements of this subpart.
As noted during the
inspection on December 29, 2021, Respondent failed to have designated Class A,
Class B, and Class C operators at the Site.
Operator Class A and Operator Class B
certificates submitted July 8, 2022.
Operator Class C certificate submitted
August 4, 2022.
n.
Pursuant
to 40 CFR 280.34(a)(3), owners and operators must submit the following
information to the implementing agency: reports of all releases including
suspected releases (§ 280.50), spills and overfills (§ 280.53), and confirmed
releases (§ 280.61).
As noted during the
inspection, Tank 1 contained over three inches of water and had no release
detection since 2019 and no suspected release report was submitted. Both RUL
and premium unleaded (“PUL”) submersible turbine pump (“STP”) risers were
observed to have black, stained backfill in them.
7. 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, Respondents
acknowledge notice of this right and waive 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 Respondents. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondents shall comply with the rules listed in the findings of fact
above.
3.
Effective immediately, Respondents shall comply
with 40 CFR 280.34. Specifically, Respondents shall cooperate fully with inspections,
monitoring and testing conducted by the implementing agency, as well as
requests for document submission, testing, and monitoring by the owner or
operator pursuant to section 9005 of Subtitle I of the Solid Waste Disposal
Act, as amended to IDEM.
4.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 329 IAC 9-2-2(c). Specifically, Respondents shall
download, complete, and submit the “Notification
Form for Underground Storage Tanks,” State Form from IDEM webpage: https://www.in.gov/idem/5157.htm,
under “Underground Storage Tank (UST) Program.” Once downloaded the form may be
completed on-line or by hand and emailed to USTRegistration@idem.in.gov.
The completed form will not be accepted by mail.
5.
Within
thirty (30) days of
the Effective Date, Respondents shall comply with 329 IAC 9-8-11(b). Specifically, Respondents shall submit documentation of financial responsibility
to IDEM.
6.
Within
thirty (30) days of the Effective Date, Respondents shall comply with 40 CFR
280.35(a)(2). Specifically, Respondents shall contract with a certified
contractor to inspect, repair and test all overfill prevention equipment and
submit documentation to IDEM.
7.
Within
thirty (30) days of the Effective Date, Respondents shall comply with 40 CFR
280.240. Specifically, Respondents
shall submit a list of those employees designated to be Class C operators.
8.
Within
thirty (30) days of the Effective Date, Respondents shall comply with 40 CFR
280.34(a)(3). Specifically, Respondents shall report the suspected release to
IDEM and investigate appropriately.
9.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Jodi Pisula, 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 |
10.
Pursuant to IC 13-30-4-1, Respondents are
assessed and agree to pay a civil penalty of Eight Thousand Seven Hundred
Sixty-Two Dollars ($8,762.00).This penalty reflects a
significant reduction from the original proposed civil penalty based upon
evidence submitted to IDEM by Respondents which adequately demonstrated
Respondent’s inability to pay the
original proposed civil penalty. Said penalty amount shall be due and payable
to “Underground Petroleum Storage Tank Trust Fund” in eleven (11) monthly
installments of Seven Hundred Thirty Dollars ($730.00), and Seven Hundred
Thirty-Two Dollars ($732.00) the twelfth and final month. Respondents shall pay
by the due date printed on the Invoice as attached, and any subsequent invoices
received in accordance with the agreed upon payment plan. Civil and stipulated penalties are payable to the “Underground
Petroleum Storage Tank Trust Fund” by:
Mail:
Civil penalties are payable by check to
the “Underground Petroleum Storage Tank Trust 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.
11.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess, and Respondents
shall pay a stipulated penalty in the following amount:
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Paragraph |
Penalty |
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$100.00 per
week |
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Order
paragraph #4 |
$100.00 per
week |
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Order
paragraph #5 |
$100.00 per
week |
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Order
paragraph #6 |
$100.00 per
week |
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Order
paragraph #7 |
$100.00 per
week |
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Order
paragraph #8 |
$100.00 per
week |
12.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondents receive written notice that
Complainant has determined a stipulated penalty is due; the thirtieth day being
the “Due Date.” Complainant may notify Respondents at any time that a
stipulated penalty is due. Failure to notify Respondents 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 Respondents for violation of this Agreed Order.
Neither assessment nor payment of stipulated penalties shall preclude
Complainant from seeking additional relief against Respondents 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.
13.
In the event that the monies
due to IDEM pursuant to this Agreed Order are not paid on or before their Due
Date, Respondents shall pay an additional penalty of 10 percent, payable to the
“Underground Petroleum Storage Tank Trust Fund” and shall be payable to IDEM in
the manner specified in Paragraph 10,
above.
14.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
15.
This Agreed Order shall apply to and be binding
upon Respondents and all successors and assigns. Respondents shall provide a
copy of this Agreed Order, if in force, to any subsequent owners, successors,
or assigns before ownership rights are transferred.
16.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’ status or responsibilities under this
Agreed Order.
17.
Respondents shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
18.
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.
19.
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 Respondents
pursuant to this Agreed Order, shall not in any way relieve Respondents of the
obligation to comply with the requirements of any applicable permits or any
applicable Federal or State laws or regulations.
20.
Complainant does not, by its approval of this
Agreed Order, warrant or aver in any manner that Respondents’ 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
Respondents’ efforts to comply with
this Agreed Order.
21.
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.
22.
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 Respondents may incur as a result of such communications with the U.S. EPA or any
other agency or entity.
23.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
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Kokan Petroleum Inc. |
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Jennifer
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COUNSEL FOR
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APPROVED
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MANAGEMENT
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For
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Signed 9/15/2022 |
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Peggy
Dorsey |
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Assistant
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