Part One – Air, Water, California Proposition 65, and Cannabis

Cannabis growing and processing operations face increasing regulatory pressure to assess and reduce their environmental impacts – especially in the areas of water quality, air emissions, energy use and sustainability, pesticide use, and consumer warnings.

Operations with propane, gas- or diesel-powered ancillary equipment – such as emergency generators, boilers, or space or water heaters – may need to obtain permits for this equipment as well.

Depending on the state where the facility is located, the first step in an air permitting analysis is calculating the facility’s Maximum Theoretical Emissions an operation may need, and because there are multiple methods of calculating these values, we recommend that this analysis be undertaken with expert legal and technical assistance.

Air permits also typically require a facility to track and record its air emissions on a rolling basis, document any exceedances of air emissions and/or equipment failures, and report this information to the regulatory authority at least on an annual basis.

As cannabis growing and processing operations have proliferated in urban areas, there has been a concomitant rise in odor complaints associated with these operations.

Every state has some form of nuisance law, which generally prohibits a facility from emitting noise, odors, and other unpleasant activities to neighboring properties in a manner that unreasonably interferes with the neighbor’s use and enjoyment of his or her property.

This is because the winner of a successful nuisance suit may obtain money damages, or a court order to curtail or even cease the offending activities entirely.

Cannabis operators should assess how they use water in every step of the process – from the growing fields, to processing operations, to reuse and disposal – to ensure these actions comply with all applicable laws.

Further, the exercise of certain water rights may require a permit or license from a local, regional, or state water authority – particularly in western states, where water rights law has evolved differently from that in other parts of the country where water is often more plentiful.

Depending on the city or watershed where the cannabis operation is located, the public water supply system may not have adequate volumes to supply the required amounts at all times – and especially during drought conditions, when the supplier may be required by law to give preference to non-commercial users of the system.

Because of the complexities involved in water rights law, cannabis operators cannot assume that they automatically have the right to use water from a well on their property, or divert water from a stream running on or adjacent to the property.

Once a cannabis operation has secured a legal source of water, it must then assess what permits may be required to ensure that process water from operations is discharged and otherwise managed appropriately.

An indoor cultivation and/or processing facility could be considered a point source of pollution under the CWA if it generates wastewater from growing or processing operations.

In general, wastewater from cannabis growing or processing operations cannot be disposed of in onsite wells or septic systems, or washed into stormwater drains.

If a POTW is not able to accept wastewater from cannabis operations, the facility cannot obtain an NPDES permit for direct discharge of wastewater, or if the facility is not connected to the municipal water system, options become more limited.

California’s Safe Drinking Water and Toxic Enforcement Act of 1986, known commonly as “Prop 65,” is a state law that requires labeling of products that contain chemicals that the state has designated as being known to cause cancer, birth defects or other reproductive harm.

The listing does not include a safe harbor level, meaning that products with any detectable level of THC – including products that contain less than 0.3% THC in conformance with federal law – will require Prop 65 warning labels, unless it can be shown that the anticipated exposure level will not pose a significant risk of cancer or reproductive harm.

Prop 65’s warning requirements apply to any business in the chain of distribution, including manufacturers, distributors and retailers in California – but also includes out-of-state companies selling products in California.

It would not be surprising if the cannabis industry quickly becomes a target of these “sue and settle” efforts, given that the recently eased regulatory atmosphere around these products had led to a concomitant rise in their marketing and sale.

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks.

…Read the full story