Violations can be more than just a nuisance if ignored
By Ammon Ford
Imagine you’re a state-licensed cannabis producer. You’ve complied with state licensing requirements. You’ve worked with the local township and county to find a location that is properly zoned and meets requirements of state laws. You’ve even carefully avoided all of the eight federal enforcement priorities at every step to keep the DEA from kicking in your door. You are all set to start operations, and then some agency you’ve never heard of hands you a paper, insisting you submit documentation about your facility, your air filtration systems, plants, license, environmental impact and more — in addition to a fee of $1,150 just to file the paperwork for some permit you didn’t know you needed. Who are these people? Where do they get the right?
In most jurisdictions, there are clean air agencies that require cannabis businesses to register only if they have carbon-emitting machinery, like a generator. Beyond carbon emissions, the agencies are most likely to visit your marijuana business if your neighbors report a nuisance. Nuisance laws are intended to protect each landowner’s right to use their property as they like, without interference from a smell, sound, light, etc. coming from their neighbor’s property. Consequently, if the strong smell of your semi-enclosed greenhouse is keeping your neighbors awake at night, that is a nuisance complaint that will typically be handled by your local air quality agency.
For example, in Western Washington, the Puget Sound Clean Air Agency (PSCAA) is not particularly well known, but it is a regional government entity, empowered by the 1967 Washington Clean Air Act to conduct to conduct inspections.
The PSCAA only regulates King, Kitsap, Snohomish, and Pierce counties. Its reach is limited, but there are sister agencies with the same mission throughout every region of the state. Each regional agency has its own requirements for cannabis businesses. Many of the details reflect the PSCAA’s policies, which may differ from your local agency.
For those businesses that do not comply with regulations, the PSCAA can levy fines of up to $10,000 per day. The agency regulates all sources of air pollutants within its jurisdiction, including national industries (like Boeing’s spray paint), and small local businesses (like chemicals used by dry cleaners). It is the agency that decides which days are no-burn days and which smokestacks are too smoky. The agency’s work is important to maintaining the air quality and safety for all of the Puget Sound’s 3.6 million residents.
The PSCAA has taken a stricter stance on marijuana than many of the other regional agencies. Licensed producers and processors in the Puget Sound are required to file for a notice of construction (NOC) permit before building their facility. Failure to obtain this permit before building a facility could result in fines, but many first-time applicants are given an opportunity to comply with regulations before any fines are issued.
The NOC application informs the PSCAA about the details of your operation, and puts specific obligations on the business to mitigate the smell and other natural air pollutants emitted by the growing and processing of marijuana. A SEPA environmental review is a necessary component of the application. The fee for the application is $1,150, which must be paid up front. Once the review process has begun, the applicant will be notified of any changes that must be made in order to be in compliance.
The main pollutants the PSCAA is concerned about are volatile organic compounds (VOCs), which are naturally emitted by the cannabis plant. This is not unique to cannabis: pine trees and citrus fruits emit VOCs, but so do gasoline and formaldehyde. Some VOCs can be dangerous, but many are entirely harmless; in fact, you are almost guaranteed to be breathing in some VOCs right now as you read this, even if you are indoors. These measurable, floating, physical compounds in the air will eventually land somewhere, possibly in the dirt, possibly in someone’s nose. Each individual person will have different comfort levels to each VOC, which is why the law considers them all to be air pollutants, and therefore under the purview of the regional clean air agencies, such as the PSCAA, to regulate.
How can your high-quality Super Skunk production facility be in compliance? Each site will be different, but the goal for each will be the same: eliminate pollution and nuisance by removing as many of the VOCs in the air as possible. Many sites will require carbon filters in their ventilation systems, which remove up to 90% of air pollutants before the air is pumped to the outside. Take a walk around the perimeters of your property; if you can smell the marijuana at the edge, then you might be at risk of a nuisance complaint or an environmental violation. The PSCAA will outline your required due diligence during the application process. If you own a licensed marijuana business, you should contact your attorney, or your local clean air agency, to learn what is required in your region with your particular type of operation.
Ammon Ford is a law clerk at Gleam Law. He is the founder and president on the Cannabis Law Society at Seattle University. In addition, he is presently earning both his JD and his MBA simultaneously at Seattle University.