The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
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Wastewater from distilling operations is unique from most other industrial operations because of the high levels of biological oxygen demand ("BOD") in the waste stream. BOD is a measure of the organic materials in water. Bourbon is made by fermenting corn and other grains. Not all of the organic material is consumed in this process, so the leftover organic material "feeds" microorganisms living in a water body which, as they develop and multiply, consume the dissolved oxygen in the water. As the dissolved oxygen is consumed, the water becomes less and less habitable to aquatic species. The effects of BOD pollution on aquatic life were evident in the aftermath of the fire at a bourbon distillery in Kentucky in 2000. Efforts to put out the fire resulted in the discharge of bourbon and water (from fire hoses) into the Kentucky River. Several days later, a large fish kill occurred. The bourbon itself was not toxic to the fish; the alcohol and other organic materials, however, resulted in a high BOD in the discharge that dramatically increased the levels of microorganism in the river, depleted the oxygen levels, and killed many fish. Many distilleries and warehousing areas have constructed berms and developed other techniques to keep spills from reaching nearby streams and rivers. In developing limits for BOD in distillery KPDES permits, the Division of Water relies in part on a document prepared for the Environmental Protection Agency in 1975 titled "Development Document for Effluent Limitation Guidelines and New Source Performance Standards for the Miscellaneous Food and Beverage Point Source Category." Effluent limitation guidelines are standards adopted by the United States EPA that account for the amount of effluent reduction attainable through the implementation of the "best practicable control 9 technology currently available." Effluent limitation guidelines are source (or industry) category based and, where they exist, inform the Division of Water's technologybased limit determinations. The effluent limitation guidelines for the distilling industry were never adopted as formal effluent limitation guidelines; however, the Division of Water still relies on them to inform their determination of effluent limits for BOD and total suspended solids. The BOD limits can present a challenge to distillery opera- tors, but with modern treatment technologies, the levels can be managed. AIR EMISSIONS Production at a distillery also includes air emissions that are regulated under the Clean Air Act. Sources of air emissions at distilleries can include natural gas or coalfired boilers; grain handling; drying and storage equipment; fermentation and distilling processes; and bourbon storage, processing, and bottling equipment. Distillery emissions from these processes must be authorized by a permit issued by the Kentucky Division for Air Quality, or by the Louisville Air Pollution Control District (for distilleries and other industries in Louisville). The type of permit and, therefore, the level of controls, monitoring, and reporting required depends on the amount of pollutants that will be emitted by the source. A facility's potential to emit is calculated using expected maximum operations levels, historical emissions levels, and data derived from similar operations.10 Anticipated reductions from pollution control equipment can be considered if the permit will mandate the use of such equipment.11 No registration or permit is required if the source's potential to emit is less than two tons per year ("tpy") of an individual hazardous pollutant ("HAP"), less than five tpy of combined HAPs, and less than 10 tpy of regulated, non-HAP pollutants (i.e. particulate matter, carbon monoxide, sulfur dioxide, lead, volatile organic compounds and nitrogen oxides).12 As a facility's potential to emit increase, the permitting requirements become more stringent. If the facility has the potential to emit more than 10 tpy of a single HAP, more than 25 tpy of combined HAPs or more than 100 tpy of a regulated, non-HAP pollutant, the facility is considered a major source and is required to obtain a Title V operating permit.13 A Title V operating permit is subject to review and comment by the United States EPA.14 If the facility is a major source for non-hazardous pollutants (emitting more than 100 tpy), the emissions limits will be set at a level that could be achieved by implementing the best available control technology or BACT.15 Determinations of what constitutes BACT account for the energy, environmental and economic impacts of installing the technology. If the source is a major source for hazardous pollutants (emitting greater than 10 tpy of any single HAP or more than 25 tpy of combined HAPs), emission limits will be set at levels that could be achieved by implementing the maximum achievable control technology or MACT.16 CONCLUSION The distilling industry plays a vital role in Kentucky's economy and its identity. Like every other industry in the state, it must operate in the context of a complex regulatory framework designed to protect the environment of the Commonwealth. The challenges that this framework may pose to the distilling industry are, in many ways, no different than those posed to other industrial facilities in the state. With proper planning and a careful eye, distillers can maintain compliance with environmental regulations as they create the product that so many of us enjoy. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Paul Coomes, Ph.D. & Barry Kornstein, The Economic and Fiscal Impacts of the Distilling Industry in Kentucky at 1 (January 2012). Permit No. KYR000000, Agency Interest No. 35050. Industrial Stormwater General Permit, Section 1.1. Industrial Stormwater General Permit, Section 2. Industrial Stormwater General Permit, Section 3. 401 KAR 5:060. 401 KAR 5:065. 401 KAR 5:070. 33 U.S.C. § 1314(b). 401 KAR 52:001(56). d. 401 KAR 52:070, Section 1. 401 KAR 52:020, Section 1. 401 KAR 52:020, Section 25; 401 KAR 52:100. 401 KAR 51:017, Section 8. 42 U.S.C. § 7412(d). Ken Gish is a member of the Environmental, Natural Resources and Energy Service Group in the Lexington office of Stites & Harbison PLLC, where his practice focuses on complex facility permitting, electric utility regulation, sustainability, hazardous waste remediation, renewable and alternative energy development, compliance with regulatory requirements, and environmental litigation. Gish represents the firm's clients in all stages of the permitting process from application to appeals and in matters before administrative bodies and in state and federal court. He also assists clients in managing regulatory compliance matters arising from federal, state and local laws. 15 monitoring reports, the levels of pollutants in its waste discharges to ensure that the effluent limits in the permit are not being 8 violated. B&B; • 11.13