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DEC Proposes Stormwater Permitting Rule for Wineries, Breweries, and Hard Cideries in New York

2018 08 29 SPDES Permit for Wineries Blog Image.jpgThe New York State (NYS) Department of Environmental Conservation (the "DEC" or "Department") is brewing up new stormwater regulations that will directly affect licensed wineries, breweries, and hard cideries in New York State.

The DEC's proposal requires issuance of a State Pollutant Discharge Elimination System ("SPDES") General Permit that will cover facility wastewater discharges of such facilities to groundwater. Process wastewater generated through production of wine, beer, and hard cider is classified as an "industrial waste" that needs to be monitored and treated appropriately before the water discharges into ground water of the state. The DEC determined that a general permit with uniform standards for management of the wastewater would be appropriate and useful for that regulated industry.

What does this mean for wine, beer, and the hard cider industry?

Fear not, if your business would be affected, because the Department developed these standards with the goal of fostering growth of New York's wine, beer, and hard cider industries in mind while also streamlining the SPDES permitting process. As these are just proposed regulations, keep in mind, too, that standards and requirements listed below are subject to change prior to the Department releasing notice of the proposed General Permit. Stakeholders and interested parties were invited to comment on the proposed regulations and will similarly have an opportunity to comment on the proposed General Permit (date yet to be determined).

Which facilities will the General Permit apply to?

The General Permit would apply to existing and new licensed wineries, breweries, and hard cideries in New York that discharge process wastewater to groundwater from onsite wastewater treatment systems that have a design peak flow of less than 10,000 gallons per day.

The following separate standards will apply to existing versus new facilities:

Existing facilities

The Department is considering separate standards for facilities in operation prior to the effective date of the general permit. This would allow existing facilities to operate their current system until modification, repair, or expansion is necessary. However, it will require that a NYS licensed professional engineer (PE) inspect and certify that the system is operating correctly; anticipate that cost coming out of the owner's pocket, of course. Facilities will also be required to monitor parameters via quarterly samples of treatment systems.

New facilities

Facilities that are classified as being constructed after the effective date of the general permit would require the wastewater treatment system to be designed by a NYS licensed PE. Important criteria that operators would be required to meet include:

· "Design criteria" levels of pollutants prior to discharging to subsurface treatment systems;

· Installing a flow monitoring device that would track peak rates and volume of process waste water entering the treatment system;

· Monitoring differences in flow rates during production versus off production times;

· Adding sufficient controls to ensure that the system is not functioning beyond its design capability; and

· Installing a subsurface treatment system in accordance with NYS design standards.

Additional requirements imposed on new facilities may include quarterly testing of certain contaminants to ensure they do not exceed what is known as "benchmark concentrations" set by the Department. However, the Department notes that exceedance of "benchmark concentrations" would not be considered a violation, and owners would have the responsibility to investigate and correct the issue.

The Department has proposed the following operation and maintenance standards for the wastewater treatment systems that apply to both existing and new facilities to ensure long term performance of the treatment systems:

· Daily flow monitoring which includes recording the average, peak, and total flow from treatment system;

· Periodic inspections of treatment components, including subsurface treatment system; and

· Inspections of the septic tank that a certified inspector would perform; and pumping of such tanks minimally once every three years; owners are also required to remove accumulation of scum and sludge in the septic tank.

Owners will need to submit annual reports of treatment system performance (including inspections and flow rates) to the Department by March 31st that will reflect operations for the previous year along with maintaining records on site for at least five years.

What will this cost to the wine, beer, and hard cider industries?

The Department has estimated the following costs for compliance with the proposed General Permit:

Sampling (per round): $50 - $60

Tank inspection by certified inspector: $200 (cost savings possible if the owner gets certified)

General Permit fee: $110

PE evaluation of existing system: $500 - $1500

Once the Department has established the Notice of Proposed Permit, there may be an additional comment period so companies affected by the proposed rule may still have the chance to voice their concerns.

Call the attorneys of Periconi, LLC at 212-213-5500 if you believe your facility would be impacted by the DEC's proposed General Permit for wineries, breweries or hard cideries, or have general questions about the DEC's SPDES permitting process.

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