Practice Areas

Like other outdoor and indoor agricultural producers, hemp and cannabis growers encounter significant pest problems ranging from insects to fungal disease that can significantly hurt the quality and quantity of the crop. This in turn may result in disruption to your operation with severe financial consequences, which in turn compels growers to use correspondingly larger amounts of pesticides including pesticides long restricted or banned in the United States. Unlawful pesticide use results in toxic pesticide residues throughout the supply chain in all types of hemp and cannabis products, creates harmful worker exposure and dangerous pesticide drift situations, and contaminates land and water resources that create Superfund-like sites.

Unlike most other types of agricultural commodities, however, the U.S. EPA has not approved any pesticide products specifically for use on hemp and cannabis plants. Thus, many growers face a dilemma of whether to use pesticides illegally or to forego pesticide use potentially jeopardizing their bottom line. If hemp and cannabis growers and other downstream applicators do decide to use pesticides illegally, they face potential civil and criminal liability by both federal and state enforcers for numerous violations beyond simply misusing the pesticide. The question facing growers and processors is when and who will be the first target of a major federal or state prosecution for the misuse of pesticides. And California-centric growers and downstream entities must be mindful of the consequences of violating Proposition 65.

The integrity of the marijuana industry and the safety of its products is also threatened by the very testing laboratories relied upon to prove such safety with allegations of laboratory shopping to find a laboratory that will produce business-friendly results. Also, due to ambiguous or limited language in state regulations, there is limited laboratory analyses controls by state regulators. Many labs do not have adequate quality assurance and quality control measures in place such as those that are found in environmental laboratories following current Safe Drinking Water or Clean Water EPA requirements.

Pesticides

EPA enforces requirements under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) including those concerning the unlawful distribution, sale, and use of pesticides. Focus areas for EPA’s FIFRA compliance monitoring program include pesticide misuse resulting in Worker Protection Standard (WPS) violations and the illegal import of pesticides into the United States. FIFRA § 136j (or Section 12) contains the unlawful pesticide acts and it is generally unlawful to use a pesticide in a manner not in accordance with its label, to sale or distribute an unregistered pesticide, or to use a suspended or cancelled pesticide.

Cercla

Section 103(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) generally requires that the person in charge of a regulated facility immediately notify the National Response Center whenever a reportable quantity (“RQ”) or more of a CERCLA hazardous substance is released in any 24 hour period. The purpose of this requirement is to notify officials of potentially dangerous releases so that they can promptly evaluate the need for a response action.

Clean Air Act

The Clean Air Act requires EPA to regulate toxic air pollutants, also known as air toxics, from categories of industrial facilities – hazardous air pollutants are those known to cause cancer and other serious health impacts such as reproductive effects or birth defects, or adverse environmental effects. Certain facilities in the commercial production, processing, and extraction chain may be to regulations. There are also possible waste disposal issues regulated under the Resource Conservation and Recovery Act (RCRA), which ensures the safe management and cleanup of solid and hazardous waste, and programs that encourage source reduction and beneficial reuse. As hemp and cannabis growers scale up, their operations are increasingly likely to generate large amounts of solid and hazardous waste.

Clean Water Act

The Clean Water Act protects the quality of waters in the United States by eliminating the discharge of any pollutants into surface waters except as permitted by the government. A permit is required for waste streams such as industrial process water being discharged into waters of the United States and industrial facilities that discharge into a public sanitary sewer system are generally regulated under EPA’s pretreatment program through a permit issued by the POTW. The concern is pesticide or chemical contaminated wastewater from the grower and/or the processing facility using processes like ethanol, butane, CO2 or “ice wax” – may also create air issues.

Emergency Planning & Community Right-To-Know Act

The Emergency Planning & Community Right-to-Know Act (“EPCRA”) was also designed to help local communities protect their public health, safety, and the environment from chemical hazards. EPCRA requires industry to report on the storage, use and releases of hazardous substances to federal, state, and local governments. Facilities must complete and submit a toxic chemical release inventory form annually for each of the over 600 Toxic Release Inventory (“TRI”) chemicals that are manufactured or otherwise used above the applicable threshold quantities. In addition, regulated facilities must immediately report accidental releases of Extremely Hazardous Substances (“EHSs”) and “hazardous substances” defined under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Any releases of these substances in quantities greater than their corresponding “RQs” must be reported to state and local officials. Facilities that maintain EHS on-site in quantities greater than corresponding threshold planning quantities must cooperate in emergency plan preparation.

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (“RCRA”) gives EPA the authority to control hazardous waste from the “cradle-to-grave” meaning the generation, transportation, treatment, storage, and disposal of hazardous waste. RCRA also set forth a framework for the management of non-hazardous solid wastes and generally requires permits for generators and transportation, storage and disposal facilities.

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