STATE OF INDIANA COUNTY OF MARION	) ) )	SS:	BEFORE THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Complainant, v. AquaBounty Farms Indiana LLC, Respondent.				) ) ) ) ) ) ) ) ) )	Case No. 2022-29151-W

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. AquaBounty Farms Indiana LLC (Respondent), owns/operates the facility, located at 11550 East Gregory Road, Albany, Delaware County, Indiana (the Site).

3. Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit No. IN0062669 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from its facility into Riley Stafford Ditch from Outfall 004. On November 1, 2021, Respondent’s Permit was renewed updating the outfall location to Outfall 004, replacing Outfalls 001, 002, and 003. Prior to November 1, 2021, Respondent was authorized to discharge from the facility into Riley Stafford Ditch from Outfalls 001, 002, and 003.

4. IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail/personal service to:

Alejandro Rojas, COO

AquaBounty Farms Indiana LLC

11550 East Gregory Road

Albany, Indiana, 47320

6. During an investigation conducted by a representative of IDEM, violations were found, as described below.

7. 327 Indiana Administrative Code (IAC) 5-2-8(1), states the permittee shall comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act and Indiana Code (IC) 13 and is grounds for enforcement action by IDEM.

8. Pursuant to Part I.A.1 of the Permit, the permittee is required to comply with the monitoring requirements contained in the Permit, including effluent limitations.

Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by Respondent for the period of May 2020 through December 2022 revealed violations of effluent limitations contained in Part I.A.1 of the Permit as follows:

A. The monthly average concentration limitation for Toal Suspended Solids (TSS) was exceeded during September 2021 for Outfall 001, and January, February, June, July, October, and November 2022 for Outfall 004.

B. The daily maximum concentration for TSS was exceeded during September 2021 for Outfall 001, and January, February, June, and July 2022 for Outfall 004.

C. The monthly average concentration limitation for Ammonia Nitrogen was exceeded during May, June, July 2020; May, June, July, August, and October 2021 for Outfall 001, and June 2022 for Outfall 004.

D. The daily average minimum for Dissolved Oxygen (DO) was not met during June, July, October 2021 for Outfall 001, and May, June, August, and September 2022 for Outfall 004.

E. The monthly average concentration for Biological Oxygen Demand (BOD) was exceeded during September 2021 for Outfall 001 and June 2022 for Outfall 004.

F. The daily maximum concentration for BOD was exceeded during September 2021 for Outfall 001 and April 2022 for Outfall 004.

Respondent failed to comply with the effluent limitations from Outfalls 001 and 004 contained in the Permit, in violation of Part I.A.1 of the Permit.

9. On August 24, 2021, IDEM sent an Inspection Summary/Noncompliance Letter and on February 28, 2022, IDEM sent a Noncompliance Letter to Respondent outlining violations at the facility. The letters required a response detailing actions taken to correct the violations. IDEM received responses to the letters explaining compliance actions Respondent took or would take to address the violations. However, the responses did not adequately address the violations noted above at the facility.

10. 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 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 Paragraph 8 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 NOV and prior to the Effective Date.

2. Respondent shall comply with rules and statutes listed in the findings above at issue.

3. Within 60 days of the Effective Date, Respondent shall develop and submit to IDEM for approval a Compliance Plan (CP) which identifies actions that Respondent will take to achieve and maintain compliance with its Permit, specifically including the actions Respondent will take to achieve and maintain compliance with effluent limitations contained in the Permit, specifically TSS, DO, Ammnoia Nitrogen, and BOD.

The CP shall include an implementation and completion schedule, including specific milestone dates.

Respondent shall notify IDEM in writing of variations to the approved CP.

4. Respondent shall, after completion of the work required pursuant to the approved CP from Paragraph 3 above, demonstrate 12 consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit.

5. In the event that violation(s) occur during the Compliance Demonstration, within 30 days of the violation, Respondent shall develop and submit to IDEM, for approval, an Additional Action Plan (AAP) which identifies the additional actions that Respondent will take to achieve and maintain compliance with the terms and conditions of the Permit. The AAP, if required, shall include an implementation and completion schedule, including specific milestone dates.

6. The plans required by Order Paragraphs 3 and 5 are subject to IDEM approval. In the event IDEM determines that any plan or any modified plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may seek civil enforcement of this Order.

7. Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan(s) and adhere to the milestone dates therein. The approved CP and AAP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

Following completion of the actions included in the AAP, the 12 month Compliance Demonstration, as specified in Paragraph 4 above, will re-start. Failure to achieve compliance at the conclusion of work under an AAP may subject Respondent to additional enforcement action.

8. Beginning upon receipt of approval of the CP or AAP, and continuing until the successful completion of implementation of the approved CP or AAP, Respondent shall submit to IDEM regular progress reports identifying compliance actions implemented and completion of each required milestone in the CP or AAP. The frequency of progress report submittals shall be specified in IDEM’s written notification to Respondent of the plan approval, and will be based on the proposed milestones in the approved plan(s).

9. Beginning on the Effective Date and continuing until the successful completion of the approved CP, Respondent shall, at all times, operate its existing WWTP as efficiently and effectively as possible.

10. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Tessa Scalzo, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

11. Respondent is assessed and agrees to pay a civil penalty of Seven Thousand Eight Hundred Dollars ($7,800). Respondent shall pay the civil penalty by the due date printed on the invoice, as attached.

Civil and stipulated penalties are payable to the “Environmental Management Special Fund” by mail, phone, or online following the instructions below:

Mail:

Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2022-29151-W of this action and shall be mailed to:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

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 will be charged for e-Check payments. The Case Number 2022-29151-W of this action is required to complete the process.

Phone:

Accounts Receivable also accepts payments by phone at 317-234-3099. 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 will be charged for e-Check payments. The Case Number 2022-29151-W is required to complete the process.

12. In the event the terms and conditions of the following paragraphs are violated, IDEM may assess and Respondent shall pay the corresponding stipulated penalty:

Paragraph	Violation	Stipulated Penalty
3	Failure to submit the CP within the required time period.	$250 per week late, or part thereof.
4	For violations of terms and conditions of the Permit during the Compliance Demonstration.	$400 per violation
5	Failure to submit the AAP, if required, within the given time period.	$500 per week late, or part thereof.
6	Failure to modify the CP and/or AAP, if required, within the given time period.	$500 per week late, or part thereof.
7	Failure to meet and/or implement any milestone date set forth in the approved CP or AAP.	$500 per week late, or part thereof.
8	Failure to submit to IDEM a written progress report as specified in the CP or AAP approval letter.	$150 per week late, or part thereof.
9	Failure to operate the WWTP as efficiently and effectively as possible prior to Compliance Demonstration.	$200 per violation.

13. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due, the 30^th 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.

14. Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2022-29151-W of this action and shall be mailed to:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, Indiana 46204

15. 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.

16. 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.

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. 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.

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 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.

20. 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.

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 same violations specified in the Notice of Violation.

22. 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.

23. 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: Department of Environmental Management			RESPONDENT: AquaBounty Farms Indiana LLC
By:			By:
	Amari Farren, Chief		Printed:
	Water Enforcement Section		Title:
	Office of Water Quality
Date:			Date:
			COUNSEL FOR RESPONDENT:
			By:
			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 20__.
For the Commissioner:
Signed on May 11, 2023
Martha Clark Mettler
Assistant Commissioner
Office of Water Quality