On March 31, 2018, the New York State Department of Environmental Conservation (“DEC”) opened a public comment period regarding the potential issuance of a State Pollution Discharge Elimination System (SPDES) general permit that would provide coverage for wastewater discharges to groundwater from licensed wineries, breweries and hard cideries in New York state.  In doing so, the DEC is soliciting public input on several questions listed at the end of its Advanced Notice of Proposed Permit.

Under existing law, any winery, brewery or hard cidery discharging process wastewater must obtain an individual SPDES permit if it is making or using a disposal system or point source discharge which may cause or might reasonably be expected to cause pollution to waters of the state (including groundwater).  Process wastewater generated in these categories of production is considered an industrial waste that can have significant ranges in pH and contain high levels of oxygen demanding organic material and solids.

In recent years, New York state has witnessed a resurgence in licensed wineries, breweries and hard cideries.  Consequently, DEC has determined that there is a need for standardized wastewater management to reduce the potential for water quality impacts.  Due to the similar nature of operations of these kinds of processing facilities, DEC believes that a general permit would streamline the SPDES permitting process for these industries, reducing the costs and administrative burden to both itself and the regulated entities, while providing adequate protection to the state’s water resources.

Existing Facilities

There are existing facilities, especially small producers, that currently discharge wastewater to onsite residential septic systems.  These systems were designed to treat domestic sewage.  Because the waste associated with these industries may have higher volumes and/or strengths that may not be effectively treated by a typical residential system, DEC is considering including separate requirements for existing dischargers that were in operation prior to the effective date of the general permit.

Under the contemplated general permit, DEC would allow existing dischargers to continue to operate their current system unless/until a modification is needed for an expansion that cannot be properly managed by the existing system or if the system is in need of replacement/modification due to failure.

New Facilities

Under the contemplated general permit, facilities constructed after the effective date of the general permit would need to have their facilities designed by a NYS-licensed Professional Engineer (P.E.).  The P.E. would need to certify that the proposed system will meet a number of operating parameters designed to ensure that water resources will be adequately protected.

Operation and Maintenance

The contemplated general permit will also require all operators of wineries, breweries and hard cideries (existing and new facilities) to develop an Operation and Maintenance (O&M) plan to ensure long term performance of the treatment system.  The O&M plan would be required to address flow monitoring, periodic inspection, record-keeping and annual reporting.  The contemplated general permit will also likely require operators to collect and analyze quarterly grab samples for various parameters.

Questions Posed

The notice for the proposed general permit includes certain questions for which DEC is seeking input. These questions are found at the end of the notice.

Conclusion

There has been enormous growth in recent years in New York’s craft beverage industry. In fact, there are now more breweries in New York than at any time since 1876.[1] During this time, Governor Cuomo has announced a number of initiatives designed to advance that growth, including an annual Wine, Beer and Spirits Summit, the development of a combined craft manufacturing license, and an expansion of the places and times at which alcoholic beverages could be offered to the public.

The just proposed general permit for wastewater discharges should be seen as the next chapter in the state’s efforts to promote the continued growth of these industries.  However, given the technical and legal requirements that will likely accompany this general permit, it will be important for owners and operators of these facilities to obtain experienced and knowledgeable counsel in order to ensure that they remain in compliance and gain the benefit that is contemplated by the proposed general permit.

DEC will receive public comments until May 31, 2018, submitted in writing by mail to NYSDEC, Division of Water, Bureau of Water Permits (Attn: Douglas Ashline), 625 Broadway, Albany, NY 12233-3505 or by email to WBCInfo@dec.ny.gov.

[1] Press Release, NYS Governor Cuomo, Governor Cuomo Announces Record Number of Breweries in New York State, (February 14, 2018)