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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. 2022-28733-U |
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nEY OIL COMPANY INC., c & y oIL |
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COMPANY INC, tfs INVESTMENTS, 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 Ney Oil Company Inc., C & Y
Oil Company Inc, and TFS Investments, Inc (“Respondents”), which own/operate
the facility with Facility ID No. 6296, located at 2040 N 200 W in Angola, Steuben
County, Indiana (“Site”).
3. Respondents own and operate two
10,000-gallon internally lined steel regular unleaded (“RUL”) gasoline USTs
possibly installed in 1983, one 12,000-gallon fiberglass premium unleaded
gasoline (“PUL”) UST installed March 1988, and one 2,000-gallon fiberglass
racing fuel (“REC”) UST installed March 1988. The piping is fiberglass, single
walled, and pressurized except for the 2,000-gallon UST which is European
Suction.
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 and email to:
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Dennis
Knott, President of |
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Ney
Oil Company Inc., UST Owner |
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P.
O. Box 82 |
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201
N. Main |
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Payne,
Ohio 45880 |
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Latiealle Wheat,
Registered Agent for |
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Ney
Oil Company Inc. |
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107
W. Maumee Street |
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Angola,
Indiana 46703 |
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Dennis
Knott, President of |
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C
& Y Oil Company Inc, UST Operator |
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P.
O. Box 82 |
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201
N. Main |
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Payne,
Ohio 45880 |
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Larry
Coomer, Registered Agent for |
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C
& Y Oil Company Inc |
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9408
Waterside Court |
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New
Haven, Indiana 46774 |
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Randall
Blank, President and Registered Agent for |
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TFS
Investments, Inc, Property Owner |
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3450
Bayview Road |
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Angola,
Indiana 46703 |
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Randall
Blank, President and Registered Agent for |
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TFS
Investments, Inc, Property Owner |
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3861
Bayview Road |
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Angola,
Indiana 46703 |
6.
During an investigation including an inspection
on March 2, 2022 conducted by a representative of
IDEM, the following violations were found:
a. Pursuant to 40 Code of Federal Regulations
(“CFR”) 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,
Respondents failed to submit the documentation requested by IDEM’s February 8, 2022 letter as required.
b. Pursuant to 329 Indiana Administrative Code (“IAC”) 9-2-2(b), the owner of a
UST system, UST, or tank shall submit a notification form to register the UST
system, UST, or tank to the department within thirty (30) days of becoming the
owner of, or bringing into use, the UST system, UST, or tank. Bringing a tank or UST system “into use”
means the tank or UST system contains or has contained a regulated substance
and has not been closed under 329 IAC 9-6.
As noted during the inspection, Respondents
failed to submit a notification form within 30 days of becoming the owner of,
or bringing into use, the UST system, UST, or tank.
Documenation of updated
notification form submitted February 6, 2023.
c. Pursuant to to
40 CFR 280.20(b), the piping that routinely contains regulated substances and
is in contact with the ground must be properly designed, constructed, and
protected from corrosion in accordance with a code of practice developed by a
nationally recognized association or independent testing laboratory as
specified within the regulation.
As noted during the inspection, Respondents
failed to ensure the piping or metal components in contact with the ground were
properly designed, constructed, and protected from corrosion in accordance with
an authorized code of practice.
d. Pursuant to 40 CFR 280.21(b)(1)(ii) and 329 IAC 9-1-1(d)(6), within 10 years after lining,
and every 5 years thereafter, the lined tank is internally inspected and found
to be structurally sound with the lining still performing in accordance with
original design specifications. If the internal lining is no longer performing
in accordance with original design specifications and cannot be repaired in
accordance with a code of practice developed by a nationally recognized
association or independent testing laboratory, then the lined tank must be
permanently closed in accordance with 329 IAC 9-6.
As noted during the inspection, Respondents
failed to inspect the internal tank liner as required for the two 10,000-gallon
USTs.
Documenation
of liner inspection results dated June 2020 submitted December 19, 2022.
e. Pursuant to 40 CFR 280.43(d), equipment
for automatic tank gauging that tests for the loss of product and conducts
inventory control must meet the following requirements:
(1) The automatic product level monitor test
can detect a 0.2 gallon per hour leak rate from any portion of the tank that
routinely contains product;
(2) The automatic tank gauging equipment must
meet the inventory control (or other test of equivalent performance)
requirements of § 280.43(a); and
(3) The test must be performed with the
system operating in one of the following modes:
(i) In-tank
static testing conducted at least once every 30 days; or
(ii) Continuous in-tank leak detection
operating on an uninterrupted basis or operating within a process that allows
the system to gather incremental measurements to determine the leak status of
the tank at least once every 30 days.
As noted during the inspection,
incorrect tank volumes were programmed in the automatic tank gauge (“ATG”) and
Respondent did not have the necessary tank charts in order to
determine the correct volumes.
f. Pursuant to 40 CFR 280.20(c)(1)(ii), to
prevent spilling and overfilling associated with product transfer to the UST
system, owners and operators must use the following spill and overfill
prevention equipment:
(ii) Overfill prevention equipment that will:
(A) Automatically shut off flow into the tank
when the tank is no more than 95 percent full; or
(B) Alert the transfer operator when the tank
is no more than 90 percent full by restricting the flow into the tank or
triggering a high-level alarm; or
(C) Restrict flow 30 minutes prior to
overfilling, alert the transfer operator with a high-level alarm one minute
before overfilling, or automatically shut off flow into the tank so that none
of the fittings located on top of the tank are exposed to product due to
overfilling.
As noted during the inspection, the overfill
prevention test result on the diesel tank failed due to the cage of the ball
float valve being broken.
As noted during the inspection, Respondents
failed to perform an annual proper operation test (components and criteria) of
the automatic tank gauge and other controllers as specified.
As noted during the inspection, Respondents
failed to perform an annual proper operation test (components and criteria) of
the probes as specified.
As noted during the inspection,
walkthrough inspections from July 2021 to present were not available.
Walkthrough inspections submitted
February 10, 2023.
j. Pursuant to 40 CFR 280.245, owners and
operators of underground storage tank systems must maintain a list of
designated Class A, Class B, and Class C operators and maintain records
verifying that training and retraining, as applicable, have been completed, in
accordance with § 280.34.
As noted during
the inspection, Respondents failed to maintain a list of designated Class A,
Class B, and Class C operators and maintain records verifying that training and
retraining has been completed.
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 fifteen (15) days of the Effective Date,
Respondents shall comply with 329 IAC 9-2-2(b). Specifically, Respondents shall
fill out the most recent version of the appropriate state form with required
attachments and submit to IDEM via email to USTRegistration@idem.IN.gov
and jpisula@idem.IN.gov.
Include a Facility ID # in the subject line and pdf file name of the email, so
documents can be processed accordingly.
5.
Within thirty (30) days of the Effective Date, Respondents
shall comply with 40 CFR 280.20(b). Specifically, Respondents shall contract
with an appropriately certified contractor and corrosion expert to determine if
piping or metal components in contact with the ground are substandard and
perform any necessary repairs authorized under 40 CFR 280.33.
6.
Within fifteen (15) days of the Effective Date,
Respondents shall provide documentation of the assessment and any repairs
performed pursuant to the immediately preceding paragraph to the IDEM case
manager at the address specified below.
7.
If the piping and metal components addressed in
Paragraph [ ] above are substandard and cannot be
repaired pursuant to 40 CFR 280.33, within thirty (30) days of the Effective
Date, Respondent[s] shall notify IDEM of the intent to remove or replace the
affected components in accordance with 329 IAC 9-6 and applicable installation
requirements.
8.
Within thirty (30) days of the Effective Date, Respondents
shall comply with 40 CFR 280.43(d). Specifically, Respondents shall have a
contractor with appropriate certification by the Indiana Office of the State
Fire Marshall inspect, reprogram, repair or otherwise
correct the deficiencies of the automatic tank gauging system.
9.
Within fifteen (15) days of reprogramming the
ATG, Respondents shall have all USTs tightness tested and submit documentation
to IDEM.
10.
Within
thirty (30) days of the Effective Date, Respondents shall comply with 40 CFR
280.20(c)(1)(ii). Specifically, Respondents shall contract with an
appropriately certified contractor to install or replace absent or substandard
overfill prevention equipment after consulting IDEM
Fact Sheet “Coincident Use of Overfill Prevention Devices in Underground
Storage Tanks”, available at: https://www.in.gov/idem/files/factsheet_olq_ust_overfill-prevention.pdf.
11.
Within fifteen (15) days of the inspection of
the BFV if the BFV is unable to be repaired, Respondents shall replace with
automatic shutoff device and submit documentation to IDEM.
12.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 40 CFR 280.40(a)(3)(i).
Specifically, Respondents shall have all components of the automatic tank gauge
or other controllers tested for proper operation by a contractor with
appropriate certification.
13.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 40 CFR 280.40(a)(3)(ii). Speifically,
Respondents shall have all components of the automatic tank gauging or other
probes and sensors tested for proper operation by a contractor with appropriate
certification.
14.
Within forty-five (45) days of the Effective
Date, Respondents shall submit documentation of work performed pursuant to the
immediately preceding two paragraphs to the IDEM case manager at the address
specified below.
15.
Within thirty (30) days of the Effective Date,
Respondents shall comply with 40 CFR 280.245. Specifically, Respondents shall submit
to the IDEM case manager at the address specified below a list of those
employees designated to be Class A, Class B and Class C operators and
training/retraining records with all necessary information included.
16.
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 |
17.
Pursuant to IC 13-30-4-1, Respondents are
assessed and agrees to pay a civil penalty of Twenty-One Thousand Five Hundred
Twenty Dollars ($21,520.00). Said penalty amount shall be due and payable in
ten (10) monthly installments of Two Thousand One Hundred Fifty-Two Dollars
($2,152.00). Respondent shall pay the first installment by the due date printed
on the Invoice that will be attached to the adopted Agreed Order. Respondents
shall pay by the due date printed on subsequent invoices 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.
18.
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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Paragraph |
Penalty |
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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 |
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Order
paragraph #9 |
$100.00 per
week |
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Order
paragraph #10 |
$100.00 per
week |
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Order
paragraph #11 |
$100.00 per week |
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Order
paragraph #12 |
$100.00 per
week |
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Order
paragraph #13 |
$100.00 per
week |
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Order
paragraph #14 |
$100.00 per
week |
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Order
paragraph #15 |
$100.00 per
week |
19.
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. Respondents
are jointly and severally liable for all stipulated penalty assessments.
20.
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 17, above.
21.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
22.
This Agreed Order shall jointly and severally 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.
23.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’ status or responsibilities under this
Agreed Order.
24.
Respondents shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
25.
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.
26.
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.
27.
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 Respondents may incur as a result of
Respondents’ efforts to comply with
this Agreed Order.
28.
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.
29.
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.
30.
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
of Environmental Management |
Ney Oil Company Inc. |
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Jennifer
Reno, Chief |
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Land
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Compliance
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RESPONDENT: |
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C & Y Oil Company |
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RESPONDENT: |
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TFS Investments, Inc. |
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COUNSEL FOR
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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For
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Signed
2/17/2023 |
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Peggy
Dorsey |
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Assistant
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