Why California Breweries, Distilleries, and Wineries Need to Know About California's New Industrial Storm Water Permit

by Stoel Rives LLP
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My colleagues Ryan Waterman and Parissa Ebrahimzadeh have evaluated the potential impacts of the new California industrial storm water permit on breweries, distilleries, and wineries in the state.  See below for their report.

On April 1, 2014, the California State Water Resources Control Board (“State Board”) unanimously adopted a new Industrial Storm Water permit (2014 Permit). You can find the new Industrial Storm Water permit and supporting documents here, along with a change sheet also adopted by the State Board.

By way of background, the federal Clean Water Act prohibits certain discharges of storm water containing pollutants except in compliance with a permit. The 2014 Permit is a state-wide permit (called a “general” permit) for all covered industrial facilities in California. Covered industrial facilities must comply with the 2014 Permit when it comes into force in order to be in compliance with the Clean Water Act. 

The 2014 Permit completely re-writes the prior 1997 Industrial Storm Water permit (1997 Permit), and includes many substantive changes. In particular, the 2014 Permit will vastly increase the number of industries affected and impose new and increased compliance requirements.

That is one reason why California breweries, distilleries, and wineries need to know about the 2014 Permit.

New Provisions and Timeline:

Under the 1997 Permit, certain so-called “light industry” facilities were exempt from the permit’s requirements with self-certification that non-storm water discharges at their facilities had been eliminated and that their industrial activities were not exposed to storm water. That meant that many of California breweries, distilleries, and wineries did not need to seek coverage under the 1997 Permit. Under the 2014 Permit, however, that exemption no longer applies.

The 2014 Permit requires all facilities listed in Attachment A to apply for coverage under the permit, even if they do not expose storm water to industrial activity. 

Affected “manufacturing facilities” with SIC codes include 20XX - 39XX, 4221 - 4225. 

For the beverage industries, the 2014 Permit includes SIC code 2082 for Malt Beverages (beer, ale, breweries, etc.), SIC code 2084 for Wines, Brandy, and Brandy Spirits, and SIC code 2085 for Distilled and Blended Liquors. (a SIC Code look up tool is available here.)

Currently, over 7,000 facilities are registered and complying with the 1997 Permit. How many new facilities will be covered under the 2014 Permit? No one really knows, but the number is expected to be large. 

The 2014 Permit takes effect on July 1, 2015. Facilities already operating under the 1997 Permit must submit any updates to their compliance documents by this date. Facilities newly covered by the 2014 Permit must also register and submit their compliance documents by July 1, 2015, unless they are going to seek conditional exclusion by filing a “no exposure certification” (NEC). 

Any facility seeking a “No Exposure Certification” must submit certification that there is no exposure of industrial activities and materials to storm water and other registration material, including a fee, by October 1, 2015. In addition to the NEC, the facility must allow inspections by Regional Water Board staff, and prepare a Site Map of the facility. The no exposure certification must be renewed yearly. 

The enrollment and NEC, like all documents required to be submitted to the State Water Board by any dischargers, must now be submitted to the State Water Board's Storm Water Multiple Application and Report Tracking System (SMARTS), making those reports readily available to the public.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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