The continued efforts of federal, state, and local
governments to legalize cannabis, both in medical and recreational
uses, leaves many potential impacts, including environmental law
and regulatory issues in the manufacturing, processing, and
distribution of cannabis products.

As cannabis use for medical and recreational purposes, including
products containing THC and CBD, becomes more ubiquitous across the
United States, business sectors from farming to processing to
distribution may be required to navigate complicated regulatory
landscapes that are sometimes contradictory. From odor issues to
waste and water recycling and disposal, below is a broad overview
of some of the regulatory areas of which any Future Enterprise in
the cannabis industry needs to be aware, with a sampling of
specific instances where states or local governments have provided
guidance.

Air Quality Impacts

State air quality odor regulations could apply to hemp
production and processing operations, involving hemp drying. For
example, the Pennsylvania Department of Environmental Protection
(DEP) recently ordered a hemp drying and storage facility to
cease operations due to pungent odors creating a nuisance in the
surrounding area. Pennsylvania law prohibits “the emission
into the outdoor atmosphere of any malodorous air
contaminants,” and DEP found that the facility was using
ineffectual generators and scrubbers. Other states have similar
prohibitions.

Cannabis oil extraction, which typically relies on the use of
solvents, may emit VOCs from the process. Common solvents utilized
in cannabis processing include propane, butane, ethanol, and
isopropyl alcohol. VOC emissions from extraction activities may be
subject to state air quality regulations, and subject to
controls.

Importantly, cannabis growing operations (as opposed to
processing and extraction) are not currently subject to federal air
quality regulations, due to exemptions currently in place for
agricultural operations. However, a recent study conducted in Nevada and
California has identified the potential for grow operations near
urban centers to contribute to atmospheric Ozone formation.

The industry should remain vigilant in monitoring regulatory
developments in air pollution control, and ensuring compliance with
existing requirements.

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Land Disturbing and Use Permits

Agricultural activities to cultivate cannabis may disturb areas
regulated by state or local governments and may require permits for
site preparation or construction of a cannabis farm. For example,
New Jersey regulates such areas as “special
areas.”1 Examples of “special areas” in
New Jersey are: shellfish habitat, dunes, riparian zones, wetlands,
and critical wildlife habitat, among others. The presence or
absence of “special areas” may significantly impact the
proposed facility, and so all such areas should be identified early
in the planning stages. Special areas within a project site may
affect the type of authorization that would be required. Be sure to
closely examine a proposed activity relative to any “special
areas” that may be impacted by agricultural activities
associated with cannabis cultivation.

In addition, impacts on downstream properties should also be
evaluated for potential issues, such as impacts to streams, rivers,
lakes, ponds, flood plains, flood ways, and riparian zones. If a
cannabis operation is upstream of a “special area” or may
otherwise affect such an area, it is also possible permits may need
to be acquired for these secondary effects.

Water Use Impacts

In some areas, such as in the West, water sourcing, usage, and
quality are considered a big issue for cannabis cultivation. In
California, for instance, the various state Water Boards have put
together a
Cannabis Cultivation
website to help inform the cannabis
industry as to requirements for cannabis cultivation. In a recent
cannabis program report, the Water Boards
found that

Cannabis cultivation can result in significant and long-term
environmental degradation. Construction activities associated with
clearing cultivation sites and road development can cause sediment
discharges to high-quality surface waters. Inappropriate chemical
handling (particularly of pesticides and fertilizers) can result in
degradation of both surface and groundwater quality. Unregulated
water diversion can cause stream depletions that negatively affect
aquatic ecosystems and riparian habitat. Industrial waste
discharges from indoor cultivation operations can negatively impact
groundwater or receiving publicly owned treatment works.

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To prevent these impacts, the Water Boards require all cannabis
operations to be permitted by the Water Boards. The Water Boards
also provide online cannabis permitting workshops to assist in this
process.

In Colorado, some local governments, in conjunction with the
state, have prepared a “Cannabis Environmental Management Best Practices
Guide
,” which recognizes the potential impact cannabis
cultivation has on water availability and quality. As California,
Colorado, and other states continue to develop laws on cannabis
cultivation, water volume usage and waste water discharge will
become larger legal issues that must be monitored.

Waste Handling

Cannabis waste can take many forms, from nonflower plant
material to residual methane and butane used to extract oil for
certain products. Regulation of this waste depends on the
jurisdiction, but there are some common regulatory schemes.

Waste from plants grown indoors can end up in the facility’s
wastewater stream, so growers must be aware of local water
authority or sanitary district limits on such material, discharges
in rural areas may require NPDES permits.

Leftover plant material may pose a disposal issue, as many
states require it to be ground up and destroyed so that it cannot
be used again. Cannabis cultivators must ensure that leftover plant
material is disposed according to local and state requirements.

Manufacturers that make products such as edibles and vape pens
have an entirely different set of concerns, as they may use
compressed carbon dioxide or other gases to extract oils from the
plant. In the process, they also remove significant amounts of
plant waxes and fats, which still contain tetrahydrocannabinol, or
THC, and other cannabinoids and solvents. The resulting waste can
qualify as hazardous or flammable, which is strictly regulated.

Electronic waste from vaporizer cartridges and pens are
considered hazardous because they contain lithium batteries, small
metal components, and heating elements made of a number of complex
metal components. Any non-consumer wastes produced by cannabis
operations may be required to be managed by electronics recyclers,
such as in California, though most states do not yet have such
programs.

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Energy Usage and Efficiency

Indoor cannabis growing operations can be heavily energy
dependent. From high-powered light bulbs that consume large amounts
of electricity, to heavy-duty heating, ventilation and
air-conditioning systems that control a grow room’s climate,
power bills can be large.

Packaging Issues

Cannabis packaging generally is difficult to recycle because it
is required to be child-resistant, potentially utilizing a zipper
or multilevel packaging consisting of heavy plastic, double lining,
or including cardboard or paperboard. While some companies have
tried to create all-cardboard packaging, such measures can increase
the cost of packaging, which is already expensive because of the
child-resistant issues.

Limits on Pesticides and Other Chemicals

Many states have not allowed the use of pesticides and other
chemicals on marijuana plants, while some allow a few natural
pest-control methods such as predator insects or neem oil. Not
surprisingly, every state’s rules are slightly different, which
can create issues for large cannabis companies that have operations
in several states. The business managers often would prefer a
universal method of controlling pests, weeds or fungi.

Seyfarth has a multi-practice team of attorneys who can assist
growers, processors and marketers with the myriad issues
confronting this Future Enterprise. For more information, please
contact the authors, your Seyfarth attorney, or any member of the
Seyfarth Environmental Compliance, Enforcement &
Permitting Team

Footnotes

1 “Special areas” in New Jersey are “areas
that are either so naturally valuable, important for human use,
hazardous, sensitive to impact, or particular in their planning
requirements, as to merit focused attention and special management
rules.” N.J.A.C. 7:7-9.1(a). Other states have similar
protected lands.

Orihinaly published by Future enterprise

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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