Oklahoma Bar Journal
Waste Not, Want Not
By Rachel O. Klubeck
The rapid growth of Oklahoma’s medical marijuana industry has created serious waste management challenges for lawmakers and licensed businesses.
When State Question 788 passed in June 2018 with 56.86% voter approval, Oklahoma became the 30th state to allow for the sale of medical marijuana to state-registered patients.1 By February 2021, there were 2,550 licensed caregivers, 367,053 licensed patients and 9,987 total active licensed medical marijuana businesses in the state.2 Among the licensed businesses, there are 6,546 growers, 1,262 processers, 2,057 dispensaries, 69 transporters and 23 laboratories.3 However, there were only nine active waste disposal businesses in operation in the state of Oklahoma.4 The difficulty of procuring waste disposal licenses and continued limited number of waste disposal licensees has proven problematic for the 9,978 other presently licensed Oklahoma medical marijuana businesses and puts them at an increased risk of noncompliance and potential revocation of their commercial license.
In 2019, the Oklahoma Legislature passed the Oklahoma Medical Marijuana Waste Management Act (act).5 The act required commercial cannabis businesses to dispose of medical marijuana waste through a state-licensed waste facility and imposed a number of other requirements for medical marijuana waste disposal,6 including a limit of 10 waste disposal licenses in the first year after the act’s passage. Since the act went into effect in late 2019, there have been no new waste disposal licenses issued, and the significant gap between the number of licensed businesses and waste disposal licensees continues to be a problem. The act does not include a cap on medical marijuana commercial licensing or any provisions that address the environmental implications of cannabis-related waste experienced in previously legalized states.2
RELEVANT AUTHORITIES & DEFINITIONS
The Oklahoma Medical Marijuana Authority (OMMA) was established under the Oklahoma Department of Health (OSDH) and oversees Oklahoma’s medical marijuana program.7 Under the act, “medical marijuana waste" is defined as the “unused, surplus, returned or out-of-date marijuana and debris from the plants of the genus Cannabis, including dead plants and all unused plant parts, except the term shall not include roots, stems, stalks and fan leaves.”8 Thus, cannabis businesses in the state of Oklahoma may only dispose of roots, stems, stalks and fan leaves through a state-licensed waste disposal facility.9 Pursuant to the act’s definitions, “disposal” means “the final disposition of medical marijuana waste by either a process which renders the waste unusable through physical destruction or a recycling process.”10 However, there are no definitions or guidelines for which parts may be recycled or the requirements for an authorized recycling process.
Before the act was passed in 2019, regulations from the OMMA included an expanded definition of “medical marijuana waste” to include any wastewater generated during growing and processing.11 This language proved problematic because it required licensed growers and processors to dispose of their medical marijuana wastewater through a state-licensed waste disposal facility. Yet, there were no licensed facilities for wastewater disposal. The OMMA amended the regulatory definition of “medical marijuana waste” after the act was passed in 2019 to remove wastewater from the definition and the statutory and regulatory definitions are now the same.
WASTE DISPOSAL LICENSING & PERMITTING
To obtain a medical marijuana waste disposal license in the state of Oklahoma, OMMA requires an applicant to first obtain a permit or license from the Oklahoma Department of Environmental Quality (DEQ). Initially, communication between DEQ and OMMA appeared to be nonexistent, as the OMMA provided for waste disposal licenses long before the DEQ even knew what permits or licenses were to be issued from their own agency.
The DEQ has several internal divisions relevant to waste disposal – air, land and water quality. Depending on the type of disposal, the DEQ requires certifications, allowances and other necessary documentation required by the Environmental Protection Agency (EPA), the federal agency responsible for creating standards and laws promoting the health of individuals and the environment, in order to issue a DEQ permit or license.12The cost of obtaining an EPA and/or DEQ permit or license varies and is by no means cheap. Once a DEQ permit or license (and other necessary documentation) is secured, the OMMA application can be submitted for approval. The cost for the application is $5,000 and is not refundable, even if the application is not approved.
There are four types of waste disposal licensing available under OMMA regulations: 1) Compost, 2) Landfill/Solid Waste, 3) Incinerator and 4) Other. Under the act, unless restricted by local ordinance, waste disposal licensees are authorized to destroy medical marijuana waste by open burning, incineration, burying, mulching, composting or any other technique approved by the DEQ.13 If or when an OMMA application is approved, OMMA has the full authority to audit and oversee compliance of all cannabis companies operating in the state. Additionally, as with the approval of any other commercial OMMA license, a transportation license is provided to the waste disposal licensee so they may legally transport medical marijuana. All persons who transport medical marijuana on behalf of the disposal company must register as a transport agent under the company’s OMMA license or risk noncompliance and legal ramifications.
It is important to note the difference between waste disposal facility licenses and waste disposal facility permits.14 In order to obtain an OMMA waste disposal permit ($500), one must first obtain an OMMA waste disposal license ($5,000). The permit only becomes necessary once the waste disposal licensee chooses to expand into additional locations – an option solely available to waste disposal licensee – and is required for each additional, approved facility of a waste disposal facility licensee.15
Every cannabis business operating in Oklahoma needs or will have a need for waste disposal during operations. For example, growers and processors who have samples that fail product testing requirements (that cannot be legally remediated) must dispose of the remaining batch or lot of product through a waste disposal licensee.16 After testing product samples, OMMA laboratories must dispose of tested samples through a waste disposal licensee.17 Dispensaries with broken or contaminated products must either return such product to the company that sold the product or dispose of the faulty product itself through a waste disposal licensee.18 In any situation, the transfer of waste to a waste disposal licensee must be documented in the manifest of each medical marijuana business licensee.19
Disposal processes will differ depending on the type of waste and waste disposal company. Incineration disposal is a much different disposal process than composting. A waste disposal company may first choose to perform a site evaluation for their client in order to form a waste management plan, as plans may differ for growers, processors, laboratories and dispensaries. Waste disposal companies often provide clients with storage containers to allow for easier accumulation and pick-up of client waste (typically trash cans that can be locked), but waste disposal companies are not required to provide storage containers to clients. Once ready for removal and disposal, the waste will be either picked up by the waste disposal company and transported back to their facility, or a client may transport and drop off their waste at the waste disposal facility themselves. The OMMA requires that all transportation and changing hands of products be recorded in each licensee’s manifests, which are to be reported to OMMA by the 15th of each month.20 Typically, waste disposal companies either charge clients by the pound (or similar units of weight) or by the number of storage containers.
CANNABIS WASTE DISPOSAL ISSUES
One issue with Oklahoma’s implementation of the requirement of waste disposal through licensees is practicality. With only nine present waste licensees and nearly 10,000 active commercial licenses, rural cannabis businesses may not have a viable option for proper waste disposal. Further, the additional costs associated with waste disposal may act as a deterrent for small or failing businesses to remain compliant with waste disposal requirements.
Another concern with waste disposal compliance is proper record keeping. Commercial licensees, medical marijuana research facilities and medical marijuana education facilities that dispose of medical marijuana waste are required to document their waste on a form provided by the OMMA.21 The information to be recorded includes precise weights or counts of medical marijuana waste and the manner in which the medical marijuana waste is disposed.22 Documentation must also include a sworn affidavit under penalty of perjury attesting to the lawful disposal of the medical marijuana waste.23 All disposal records have to be maintained by commercial licensees for five years and are subject to inspection and auditing by the OMMA.24
There are environmental concerns stemming from cannabis waste that have been identified in previously legalized states that Oklahoma’s Legislature and agencies have not yet adequately addressed in the state’s medical marijuana laws and regulations. Among these issues are the environmental impact of the high volume of plant and packaging waste on landfills and lack of laws and regulations that encourage recycling or repurposing of cannabis waste. For example, when a patient purchases a vapor cartridge containing medical marijuana concentrate, the cartridge is typically packaged in a plastic, opaque, child-resistant container that meets the state’s strict packaging guidelines. Once the cartridge has been consumed, the patient is left with an empty, metal and plastic cartridge “skeleton,” which ends up being trashed. Because there are not currently any programs in place to encourage or require recycling or repurposing, the packaging ends up in landfills.
One solution to the potentially environmentally toxic abundance of cannabis plant waste may be in cannabis itself, or rather, hemp. Hemp is cannabis that tests at or under 0.3% delta-9 THC.25 In other words, if one were to smoke hemp as is, they would not get “high.” Hemp was legalized at the federal level with the passage of the Farm Bill in December 2018.26More packaging companies are utilizing hemp biomass to create environmentally friendly cannabis packaging, which allows for quicker deterioration than plastic-based packaging, and hemp cellulose can be extracted and used to make cellophane, rayon, celluloid and a range of plastics.27 Further, hemp can be used to create a variety of products for an array of industries, including rope, textiles, clothing, food, paper, bioplastics, insulation and biofuel.28 The cost associated with hemp packaging is, on average, higher than its plastic-based competitors, which may not be cost-effective for small companies, but hemp packaging costs are becoming more and more competitive with plastic-derived materials.29 Oklahoma’s medical marijuana laws and regulations should be developed to encourage Oklahoma waste disposal licensees to repurpose any usable biomass and waste into hemp-like materials for packaging or other industrial and commercial uses. In addition to alleviating the cannabis industry’s environmental impact by decreasing pollution, recycling and reusing waste when possible could eventually increase profits for licensed businesses.
Medical marijuana waste disposal rules and regulations remain unclear, if not unknown, to most. Even medical marijuana business owners who have sought advice from legal counsel or have done their own legitimate research on waste are at risk of noncompliance. Clear and consistent laws and regulations, as well as improved coordination between agencies, are needed to address the conflicting standards, increase the number of licensed waste disposal facilities and account for the environmental implications of waste generated by the cannabis industry.
ABOUT THE AUTHOR
Rachel Klubeck is co-founder of Smith & Klubeck PLLC based in Oklahoma City. Her practice consists of cannabis law and litigation. She grew up in Norman and received her J.D. from the OU College of Law in 2018. She is a recipient of Oklahoma’s NextGen Under 30 award.
- Ballotpedia, ballotpedia.org/Oklahoma_State_Question_788,_Medical_Marijuana_Legalization_Initiative_(June_2018)#cite_note-3 (last visited Jan. 14, 2021).
- Okla. Medical Marijuana Authority, www.omma.ok.gov (last visited Feb. 3, 2021).
- SB 882 was passed by the Senate on May 2, 2019, and was signed by Gov. Kevin Stitt on May 19, 2019.
- 63 O.S. §§427a – 430 (2019).
- Okla. Admin. Code § 310:681-1-2.
- 63 O.S. §428.
- Okla. Admin. Code §310:681-1-4 (2018).
- Environmental Protection Agency, www.epa.gov (last visited Jan. 13, 2021).
- 63 O.S. §§427a - 430 (2019).
- Okla. Admin. Code §310:681-1-1-4 (2020).
- Okla. Admin. Code §310:681-8-1.
- Okla. Admin. Code §310:681-8-3.
- Okla. Admin. Code §310:681-5-10.
- Okla. Admin. Code §310: 681-4-5.
- Okla. Admin. Code §310:681-5-6.
- 63 O.S. §429(C) (2019).
- 2 O.S. §3-402 (2019).
- Agriculture Improvement Act of 2018, H.R. 2, 155th Cong. (2018).
- Sensi Seeds, Hemp Plastic: What Is It & How Is It Made?, sensiseeds.com/en/blog/hemp-plastic-what-is-it-and-how-is-it-made (last visited Jan. 12, 2021).
- Nicole M. Keller, The Legalization of Industrial Hemp and What it Could Mean for Indiana’s Biofuel Industry (2019), mckinneylaw.iu.edu/iiclr/pdf/vol23p555.pdf (last visited Jan. 14, 2021).
- Laura Drotleff, “Cannabis-based packaging and paper could reduce waste, promote sustainability,” Marijuana Business Daily (2020), mjbizdaily.com/green-packaging/ (last visited Jan. 14, 2021).
Originally published in the Oklahoma Bar Journal – OBJ 92 Vol 3 (March 2021)