STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2018-25298-D |
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v. |
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Case No. 2018-25783-D |
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nk
huntington holdings, 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.
NK Huntington Holdings, LLC
(Respondent) owns and operates Valley View Estates Mobile Home Park, a
community public water system (PWS) with PWSID No. IN5235014, serving 200
persons. The PWS is located at 4497 West 200 North, Huntington, Huntington
County, Indiana (the Site).
3.
A
Community Water System (CWS) as defined by 327 IAC 8-2-1(12) is a PWS that
serves at least fifteen (15) service connections used by year-round residents
or regularly serves at least twenty-five (25) year-round residents.
4.
IDEM has jurisdiction over the
parties and the subject matter of this action pursuant to IC 13-30-3.
5.
Pursuant to IC 13-30-3 et seq., IDEM
issued a Notice of Violation for Case No. 2018-25298-D via Certified Mail to:
Nick Kos |
Justin R. Wall, Registered Agent |
NK Huntington Holdings, LLC |
NK Huntington Holdings, LLC |
7857 Southwest 187th
Terrace |
309 N. Jefferson Street |
Cutler Bay, Florida 33157 |
Huntington, Indiana 46750 |
6.
Additionally
for violations found on November 13, 2018, Respondent waives issuance of a
Notice of Violation and to the settlement period of sixty (60) days as provided
for by IC 13-30-3-3. The new violations
are assigned to Case No. 2018-25783-D and are cited in Paragraphs 13 and 14 of
the Findings of Facts.
7.
Pursuant to 327 Indiana
Administrative Code (IAC) 8-2, each PWS shall comply with all provisions of
this rule.
8.
Pursuant to IC 13-18-11-11(a), all
water or wastewater treatment plants and water distribution systems, whether
publically or privately owned, must be under the supervision of an operator
whose competency is certified by the commissioner in a classification
corresponding to the classification of the plant or distribution system to be
supervised.
Pursuant to 327 IAC 8-11-1(a), all
purification or treatment works producing water to be used or available for
drinking purposes by the public shall
be properly and efficiently operated under the supervision of a competent
operator or superintendent.
Pursuant to 327 IAC 8-12-1.1, the owner or governing body of
a water treatment plant or water distribution system shall be responsible to
accomplish the following:
(1)
Place each water treatment facility
and water distribution system under the direct supervision of a certified
operator in responsible charge who:
(A)
has a valid certification of a grade
eligible for operation at the classification of water treatment facility or
water distribution system of responsibility; and
(B)
is available to make process control or system integrity
decisions about water quality or quantity that affect public health.
(2)
Designate one (1) certified operator
to have complete responsibility for the proper operation of the water treatment
plant or water distribution system.
(3)
Assure that a minimum of one (1)
operator certified according to this rule must be available for each operating
shift.
(4)
Notify the commissioner of the name
of the person designated according to subdivision (1) to be the certified
operator in responsible charge.
(5)
Submit written notice to the
commissioner no later than 30 days after the occurrence of one (1) of
the following:
(A)
A change in the person serving as
the certified operator in responsible charge.
(B)
A change in conditions or
circumstances that were used as the basis for the original classification of
the water treatment plant or water distribution system.
IDEM records indicate
Respondent failed to appoint a competent certified operator in responsible
charge to operate and maintain the plant or distribution system, and failed to
submit written notice to the commissioner within 30 days after a change in the
person serving as the certified operator in responsible charge, in violation of
IC 13-18-11-11(a), 327 IAC 8-11-1(a), and 327 IAC 8-12-1.1.
IDEM received notification on April 9, 2018 that the current certified operator
had resigned.
9. Pursuant to 327 IAC 8-2.1-5(c), all
community water systems are required to submit a Consumer Confidence Report
(CCR) Certification by October 1 of each year certifying that the CCR has been
distributed to its customers.
IDEM records indicate Respondent
failed to submit a CCR Certification for 2015 and 2017 to IDEM, in violation of
327 8-2.1-5(c).
10. Pursuant to 327 IAC 8-2-44(d), a water system
shall deliver a consumer notice of lead tap water monitoring results to persons
served by the water system at sites that are tested. A water system shall
provide the consumer notification as soon as practical but, not later than 30
days after the system learns of the lead tap water monitoring results.
IDEM records indicate that
Respondent failed to provide a consumer notification to persons served at the
tap tested for lead in 2015, in violation of 327 IAC 8-2-44(d).
11. Pursuant to 327 IAC 8-4.1-16(a)(2)(C), to
have Phase II of a Wellhead Protection Program (WHPP) approved, materials must
be submitted within ten (10) years after IDEM approval of Phase I material for
a small Community Public Water Supply System (CPWSS).
IDEM records indicate that on
October 17, 2005, IDEM formally reviewed and approved Respondent’s Phase I WHPP
for its CPWSS. The records further indicate that Respondent did not submit a
Phase II WHPP by October 17, 2015, as indicated in the Phase I approval letter.
To date, IDEM has not received a Phase II WHPP from Respondent, in violation of
327 IAC 8-4.1-16(a)(2)(C).
12. Pursuant to 327
IAC 8-2-8.2(h), PWSs using ground water shall respond in writing to any
deficiency found during a sanitary survey that is reported to the PWS using
ground water by the commissioner.
Response requirements are as follows:
(1) The
response must:
(A) be made within thirty (30) days of receipt of the report;
and
(B) indicate:
(i) how the PWS will address
deficiencies found during the sanitary survey; and
(ii) on what schedule the PWS will address deficiencies found
during the sanitary survey.
(2) The report
must indicate whether deficiencies found during the sanitary survey are under
control of the PWS.
Respondent
failed to respond in writing to the
deficiencies found during the August 24, 2016 and November 16, 2017 sanitary
surveys, in violation of 327 IAC 8-2-8.2(h).
13. Pursuant to IC 13-18-20.5-2(2), for public water
systems, the annual operation fees for a community water system with four
hundred (400) or fewer service
connections, is three hundred
fifty dollars ($350).
Pursuant to IC 13-18-20.5-4, in addition to the
penalties prescribed under:
(1) IC 13-30-4-1;
(2) IC 13-30-4-2; and
(3) IC 13-30-5-1;
if
a person does not remit a public water system annual operation fee or
installment of the fee under IC 13-16-2 to the department not later than sixty
(60) days after the date the fee is assessed or not later than thirty (30) days
after the date the installment is due, the person shall be assessed a
delinquency charge equal to ten percent (10%) of the fee or ten percent (10%)
of the installment, whichever applies.
A
delinquency charge assessed under this section is due and payable not later
than sixty (60) days after the date a fee is assessed or not later than thirty
(30) days after the date an installment of the fee is due under IC 13-16-2.
Respondent failed to pay the annual operation fee
and associated late fees for 2016, 2017, and 2018. The invoices stated that
IDEM may pursue enforcement action for non-payment of annual fees and any
associated late fees. On May 2, 2018, IDEM, via electronic mail, informed
Respondent that the below fees were due and payable by May 18, 2018 or an
enforcement action will be taken. IDEM did not receive a response regarding
payment.
Description |
Invoice Date |
Invoice Amount |
2016 Annual Operation Fee Invoice # 217924 |
January 12, 2016 |
$350.00 |
2016 Annual Operation Fee Payment Late Fee Invoice # 229974 |
May 19, 2016 |
$35.00 |
2017 Annual Operation Fee Invoice # 238286 |
January 11, 2017 |
$350.00 |
2017 Annual Operation Fee Payment Late Fee Invoice # 249944 |
May 10, 2017 |
$35.00 |
2018 Annual Operation Fee Invoice # 256221 |
January 12, 2018 |
$350.00 |
2018 Annual Operation Fee Payment Late Fee Invoice # 269951 |
June 4, 2018 |
$35.00 |
TOTAL DUE |
$1,155.00 |
14.
Pursuant
to 40 CFR 141.855(b), a community PWS using ground water only and serving 1,000
or fewer people must monitor for total coliform each calendar month that the
system provides water to the public.
Pursuant to
40 CFR 141.860(c)(1), failure to take every required
routine or additional routine sample in a compliance period is a monitoring
violation.
IDEM records indicate
Respondent failed to monitor and report at least one total coliform sample from
the PWS during the months of April, May, June, July, August, and September
2018, in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
15.
Pursuant to 40 CFR 141.861(a)(4), a system that has
failed to comply with a coliform monitoring requirement must report the
monitoring violation to the State within 10 days after the system discovers the
violation, and notify the public in accordance with 40 CFR 141 subpart Q.
Pursuant
to 327 IAC 8-2.1-7, the owner or operator of a PWS which fails to perform
monitoring is required to notify persons served by the PWS. A copy of the
public notice must also be sent to the Commissioner within 10 days after the completion of each public notice.
IDEM records indicate that Respondent failed to notify
persons served by the PWS of the failure to monitor at least one total coliform
sample from the PWS, required pursuant to 40 CFR 141.854(b) and 40 CFR
141.854(f), during April, May, June, July, August, and September,
2018, each in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7.
16. 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 adopted by Complainant or Complainant’s delegate
(as evidenced by signature), and the adopted Agreed Order has been received by
Respondent. This Agreed Order shall have no force or effect until the Effective
Date. In addition to addressing the violations cited in Paragraphs 8 through 15
of the Findings of Fact above, this Agreed Order also addresses any additional
violations of these same rules that may have occurred subsequent to the
issuance of the Notice of Violation and prior to the Effective Date.
2. Within 30 days
of the Effective Date, Respondent shall appoint a competent certified operator
in responsible charge with a valid certification of a class appropriate for the
plant or distribution system, and submit documentation to IDEM. The
documentation shall include the certified operator’s name, a copy of their
operator’s license, their contact information, and the effective date of the
change in operator.
3. Within 30 days
of the Effective Date, Respondent shall submit the CCR Certification for 2015
and 2016 to IDEM, certifying that the CCR has been distributed to its
customers.
4. Within 30 days of the
Effective Date, Respondent shall deliver the Consumer Notice of Lead Results in
Drinking Water form (attached) to persons served by the water system at the
specific sites that were tested in 2015.
5. Within 10 days of
issuing the 2015 Consumer Notice of Lead Results in Drinking Water form to
persons served by the PWS, Respondent shall send to IDEM a signed Certification
Form for Consumer Notice of Lead Results (attached).
6. Within 60 days of the
Effective Date, Respondent shall submit to IDEM the material required by
Indiana's Wellhead Protection Rule, 327 IAC 8-4.1-9, for the Phase II WHPP.
Respondent shall develop and submit the Phase II WHPP materials that contain
the following core elements:
a.
Comprehensive
WHPP.
b.
Updated
schedule of implementation.
c.
Updated
wellhead protection area (WHPA), considering new data if any.
d.
Updated
potential sources of contamination inventory.
e.
Report
of any problems or concerns regarding WHPP.
f.
Contingency
plan revisions (if needed).
g.
Documentation
to confirm:
i.
Sanitary
Setback Area meets requirements.
ii.
Abandoned
wells are identified.
iii.
Wellhead
is secured from unauthorized access.
iv.
All
potential sources of contamination within the WHPA are managed.
v.
Public
education is ongoing.
vi.
Any
new ground water contamination within the WHPA is reported.
7. Within
30 days of the Effective date, Respondent shall submit a report which
identifies how the Respondent will address deficiencies found during the
sanitary survey and on what schedule the PWS will address deficiencies found
during the August 25, 2016 and November 8, 2017 sanitary surveys. The report
must indicate whether deficiencies found during the sanitary survey are under
control of the PWS.
8.
Beginning immediately upon the
Effective Date, Respondent shall, for the purposes of this Order, monitor and
report at least one total coliform sample in the PWS per month for six (6)
consecutive months of operation (Compliance Demonstration). During the
Compliance Demonstration period, Respondent shall be subject to stipulated
penalties.
It is the responsibility of Respondent to continue
monitoring for total coliform monthly pursuant to 40 CFR 141.854(f).
9.
If the results of any sample for
total coliform required by Order Paragraph 8 indicate a positive result, the
following actions shall be taken:
A.
Further analyze the positive sample
for E. coli; and
B.
Contact Sandra Decastro, IDEM’s
Compliance Section, Drinking Water Branch, immediately at (317) 234-7444, for
further instructions, and complete all requirements as instructed.
Respondent shall be subject to stipulated penalties for
failure to complete any requirements in accordance with IDEM’s notification(s),
following a Maximum Contaminant Level (MCL) exceedance.
10.
Within 30 days of the Effective
Date, Respondent shall provide public notice, for the past total coliform monitoring
and reporting violations listed in Paragraph 16 of the Findings of Facts above,
by following these steps:
A.
Complete attached public notice and
Certification form for public notice.
B.
Post public notice where the public
has ready access for viewing, and for as long as the violation persists, but in
no case less than seven days, even if the violation is resolved.
C.
Within 10 days of issuing the public
notice, Respondent shall send to IDEM a signed Certification form for public
notice and representative copy of the public notice issued. The forms that
address the past total coliform monitoring violations accompany this Agreed
Order.
11.
Immediately upon the Effective Date, for future
monitoring and/or reporting violations, Respondent shall provide public notice
to the State within 10 days and notify the public pursuant to 40 CFR
141.861(a)(4) and
327 IAC 8-2.1-7.
12. Within 30 days of
the Effective Date, Respondent shall submit payment for the fees stated in
Finding of Facts, Paragraph 11. Said fee payment shall be due and payable
within 30 days of the Effective Date, the 30th day being a “Due
Date.”
Checks shall include the Case Number 2018-25298-D and
Invoice Number, and shall be mailed to:
Indiana
Department of Environmental Management |
P.O.
Box 3295 |
Indianapolis,
Indiana 46206-3595 |
Payment online may be completed as
follows:
2. Under
“Online Services” [scroll towards the bottom of the page]
3. Select
“Online Payment Options”
4. Select
payment by “eCheck” or “Credit Card”
5. Under “Transaction Item”
6. Select
“Invoice Payments” and follow the prompts
13. Within 30 days of
the Effective Date, Respondent shall update the enclosed “System Basic
Information Summary” document by either marking corrections or stating that the
information is accurate directly on the attached document. Once
completed, the document shall be submitted to the address in Order Paragraph
14.
14. All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
Patrick Colcord, Enforcement Case
Manager |
Office of Water Quality – IGCN
1255 |
Indiana Department of
Environmental Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
15. Respondent
is assessed and agrees to pay a civil penalty of Three Thousand
Seventy-Five Dollars ($3,075). Said penalty amount shall be
due and payable to the “Environmental Management Special Fund” within 30 days
of the Effective Date, the 30th day being a “Due Date.”
16. 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: |
2 |
Failure to appoint a competent
certified operator. |
$500 per week, or part thereof. |
2 |
Failure to submit a written notice
as required. |
$300 per week, or part thereof. |
3 |
Failure to submit the CCR
certifications to IDEM. |
$300 per week late, or part
thereof. |
4 |
Failure to deliver the Consumer Notice
of Lead Results in Drinking Water form to persons served. |
$300 per week, or part thereof. |
5 |
Failure to send to IDEM the Certification
Form for Consumer Notice of Lead Results. |
$300 per week, or part thereof. |
6 |
Failure to submit a Phase II WHPP
to IDEM. |
$200 per week, or part thereof. |
7 |
Failure to submit the report to
IDEM. |
$300 per week, or part thereof. |
7 |
Failure to complete future action,
if applicable, by the completion date stated in the report. |
$300 per week, or part thereof. |
8 |
Failure to monitor
and report required samples. |
$250 per violation. |
9 |
Failure to comply
with any or all of the requirements of this paragraph. |
$300 per week for
violation of any part of this requirement. |
10 |
Failure to comply
with any or all of the requirements of this paragraph. |
$250 per week, or
part thereof, past the 30-day deadline. |
11 |
If applicable,
failure to provide public notice. |
$250 per week, or
part thereof. |
13 |
Failure to submit the “System
Basic Information Summary” document in the manner specified. |
$100 per week, or part thereof. |
17. Stipulated
penalties shall be due and payable no
later than the 30th day after Respondent receives written
notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.”
IDEM 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 IDEM’s right to collect such stipulated
penalty or preclude IDEM from seeking additional relief against Respondent for
violation of this Agreed Order. Neither assessment nor payment of stipulated penalties
shall preclude IDEM 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.
18. Civil and
stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25298-D, of this
action and shall be mailed to:
Office of Legal Counsel |
Indianapolis Department of
Environmental Management |
IGCN, Room N1307 |
100 North Senate Avenue |
Indianapolis, IN 46204 |
19. 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.
20. 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 and any
accrued interest 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. The interest shall continue to accrue on the first of
each month until the civil penalty and any interest accrued are paid in full.
Such interest shall be payable to the “Environmental Management Special Fund.”
and shall be payable to IDEM in the manner specified above.
21. 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.
22. Respondent shall
provide a copy of this Agreed Order, if in force, to any subsequent owners or
successors before ownership rights are transferred. Respondent shall ensure
that all contractors, firms and other persons performing work under this Agreed
Order comply with the terms of this Agreed Order.
23. 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.
24. Complainant does
not, by his 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.
25. 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 Notice of Violation.
26. Nothing in this
Agreed Order shall prevent IDEM (or anyone acting on its behalf) from communicating
with the United States Environmental Protection Agency (US 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 US EPA or any
other agency or entity.
27. This Agreed Order
shall remain in effect until Respondent has complied with the terms and
conditions of this Agreed Order and IDEM issues a Resolution of Case (close
out) letter to Respondent.
REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department of Environmental
Management |
NK Huntington Holdings, LLC |
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By:__________________________ |
By:________________________ |
Samantha K. Groce, Chief |
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Water Enforcement Section |
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Surface
Water, Operations & |
Printed:_____________________ |
Enforcement
Branch |
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Office
of Water Quality |
Title:_______________________ |
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Date:________________________ |
Date:_______________________ |
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COUNSEL FOR RESPONDENT: |
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By:________________________ |
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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 March 11, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |