MINDING YOUR WASTEWATER

MINDINGMINDING your your Written by COREY DAY & HERACLIO PIMENTEL

WASTEWATER WASTEWATER

A Brief Overview of the National Pollutant Discharge Elimination System (NPDES) Permitting Program and Why You Should Care

Water quality is crucial to the success of any distillery. Accordingly, a distillery should pay special attention to the water going into its product from start to finish. Equally important, and often ignored, is what happens to the water that does not make it into the bottle, i.e., your wastewater. Understanding the latter is necessary to ensure compliance with applicable local, state, and federal water quality standards and related discharge requirements. Below is a quick overview of the national permitting scheme under the federal Clean Water Act (CWA), the nation’s foremost law regulating the quality of surface water.

In a nutshell.

Among other things, the CWA requires a person to be covered under a permit prior to the “discharge of a pollutant” from any “point source” into “navigable waters.”1 These permits are commonly known as National Pollutant Discharge Elimination System (NPDES) permits. In many states, such permits are administered by a state agency authorized to oversee the NPDES program in that state. For example, California’s NPDES program is administered through the California State Water Resources Control Board and the various Regional Water Quality Control Boards, while Kentucky’s program is administered by the Kentucky Energy and Environment Cabinet. Note that a state-run program may require broader coverage than the CWA and could further regulate discharges into state waters. A map of states authorized to administer the NPDES program is available on the U.S. Environmental Protection Agency’s (EPA) website.2 Depending on the type of discharge and the state permitting scheme, a discharger may be able to obtain coverage under a general permit, rather than applying for an individual NPDES permit specific to the discharger’s facility. Dischargers must comply with the requirements of any individual or general permit authorizing the discharge. An NPDES permit is typically valid for up to five years.

1 See 33 U.S.C. §§ 1311, 1342, 1362. 2 EPA, NPDES Program Authorizations (as of July 2019), https://www.epa.gov/ sites/default/files/2021-02/documents/authorized_states_2021.pdf. If a state has not been authorized to administer the NPDES program, the permitting program is administered by the EPA through its regional offices.

So, who needs a permit?

As previously stated, the CWA’s permit requirement applies to anyone discharging a “pollutant” from any “point source” into “navigable waters.” “Pollutant” is broadly defined and includes chemical wastes, biological materials, sand, cellar dirt, industrial wastes, and ... heat. Yes, even heat. The CWA’s definition of “industrial user” includes establishments primarily engaged in manufacturing alcoholic liquors by distillation.3 “Point source” is also broadly defined by the CWA, but essentially is an identifiable and confined conveyance such as a pipe, channel, conduit, or container from which a pollutant is or may be discharged.

As may be evident, many discharges from distilleries fall within the parameters set forth above. However, not every discharge of pollutants is subject to the CWA. Specifically, the CWA’s permit requirement is focused on discharges into “navigable waters.” The CWA defines “navigable waters” as “waters of the United States.”4 For purposes of this article, it is safe to assume that this includes oceans, coastal waters, and many rivers, streams, creeks, and lakes, among other bodies of water.5 Permits are also required for discharges that are the functional equivalent of a direct discharge from a point source into navigable waters.6 What this all means is that distilleries should consult an attorney or qualified environmental

3 “Establishments primarily engaged in manufacturing alcoholic liquors by distillation, and in manufacturing cordials and alcoholic cocktails by blending processes or by mixing liquors and other ingredients” are classified under Standard Industrial Classification (“SIC”) Code 2085, which is under the category of “Division D— Manufacturing.” U.S. Dep’t of Labor, Description for 2085: Distilled and Blended Liquors, https://www.osha.gov/sic-manual/2085 (last visited Jan. 20, 2022); see 33 U.S.C. § 1362(18). 4 33 U.S.C. § 1362(7). 5 The meaning of “waters of the United States” has been litigated for several decades and subject to reinterpretation by the federal agencies that oversee the implementation of the CWA. Most recently, the EPA and Army Corps of Engineers issued a proposed rule updating the definition of waters of the United States. Revised Definition of “Waters of the United States”, 86 Fed. Reg. 69372 (Dec. 7, 2021), https://www.epa.gov/system/files/documents/2021-12/revised-definition-of-wotus_nprm_december2021.pdf. 6 County of Maui v. Hawaii Wildlife Federation, 140 S.Ct. 1462, 1468 (2020).

professional to determine whether a distillery’s specific discharge is regulated under the CWA. That said, not all discharges require an NPDES permit. For instance, a distillery that discharges into a municipal sanitary sewer system does not need an NPDES permit. However, the locality operating the system may have its own permitting requirements and regulations regarding industrial wastewater dischargers. A discharge to land also should not require an NPDES permit unless that discharge is the functional equivalent of a direct discharge from a point source into navigable waters (but, even if an NPDES permit is not required, such discharge is very likely to require coverage under another discharge permit, such as waste discharge requirements in California). Additionally, a distillery may need to seek NPDES permit coverage if it discharges into a municipal storm water system.

Enforcement.

Mark Twain famously said, “Whiskey is for drinking; water is for fighting.” While violation of the CWA or state law may not lead to physical fights, ambivalence toward state and federal discharge requirements may subject a distillery to governmental agency enforcement action, or possible enforcement action under the CWA’s “citizen suit” provision, which allows affected members of the public to initiate costly lawsuits against dischargers for minor

7 33 U.S.C. § 1365. 8 Office of Att’y General, Commonwealth of Virginia, Attorney General Herring Secures Guilty Pleas from Shenandoah Distillery for Environmental Violations (Nov. 5, 2021), https://www.oag.state.va.us/media-center/news-releases/2201-november-5-2021-herring-secures-guilty-pleas-from-shenandoah-distillery-for-environmental-violations. 9 33 U.S.C. § 1319(c)(1)-(7). 10 Cal. State Wat. Res. Control Bd., Statewide General Waste Discharge Requirements (WDRs) for Wineries, https://www.waterboards.ca.gov/water_issues/ programs/waste_discharge_requirements/winery_order.html (last updated Dec. 20, 2021). violations.7 For example, in November 2021, a Virginia distillery agreed to pay a $700,000 penalty for violations of Virginia’s State Water Control Law for allegedly dumping more than 40,000 gallons of industrial wastewater into a local stream.8 The discharge was not permitted by the terms of the distillery’s permit. Dischargers may also be subject to criminal penalties for certain defined conduct, such as knowingly making false statements in records or reports.9 That’s right — CWA violations can result in monetary or criminal penalties.

Final thoughts.

This brief article covers one very discrete aspect of discharge requirements imposed by federal law. State and local authorities may have additional requirements for wastewater discharged in other contexts such as to land, groundwater, or state waters. For instance, in January 2021, the California State Water Resources Control Board adopted general waste discharge requirements for certain winery waste that is discharged to land.10 All this is to say that, as the craft distilling industry continues to boom, chances are that this growth will catch the eyes of regulators, lawmakers, and the general public. For this reason, it is important to keep up to date with changes in applicable laws regulating the discharge of industrial wastewater from facilities. If you have any question regarding whether your facility is complying with local, state, and federal wastewater discharge requirements, consult an attorney.

DISCLAIMER: This article is intended to be a source of general information, not an opinion or legal advice on any specific situation and does not create an attorneyclient relationship with our readers. Corey Day is an alcohol beverage attorney and litigator at Stoel Rives LLP and can be reached via email at corey.day@stoel.com or by phone at (916) 319-4670.

Heraclio Pimentel is an environment, land use, and natural resources attorney and litigator at Stoel Rives LLP. Heraclio can be reached via email at heraclio.pimentel@stoel.com or by phone at (916) 319-4645.

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