935 Mass. Reg. 500.120

Current through Register 1519, April 12, 2024

Section 500.120 - Additional Operational Requirements for Indoor and Outdoor Marijuana Cultivators

(1) In addition to the general operational requirements for Marijuana Establishments required under 935 CMR 500.105 and security requirements provided in 935 CMR 500.110, Marijuana Cultivators shall comply with additional operational requirements required under 935 CMR 500.120.

(2) A Marijuana Cultivator may cultivate its own Marijuana or acquire Marijuana from other Marijuana Establishments for the purposes of Propagation. Prior to commencing operations, Marijuana Cultivators shall disclose all growing media and plant nutrients intended to be used during the cultivation process. In all instances, Marijuana Cultivators shall disclose all growing media and plant nutrients used for cultivation upon request.

(3) Only a licensed Marijuana Cultivator or Microbusiness is permitted to cultivate Marijuana for adult use for sale to Marijuana Establishments.

(4) All phases of the cultivation, Processing, and packaging of Marijuana by a Marijuana Cultivator shall take place in a designated Limited Access Area where Marijuana is not visible from a public place without the use of binoculars, aircraft or other optical aids. Marijuana is not visible if it cannot be reasonably identified.

(5) Application of Pesticides shall be performed in compliance with M.G.L. c. 132B and the regulations promulgated at 333 CMR 2.00 through 14.00. Any testing results indicating noncompliance shall be immediately reported to the Commission, who may refer any such result to the MDAR.

(6) A Marijuana Cultivator selling or otherwise transferring Marijuana to another Marijuana Establishment shall provide documentation of its compliance, or lack thereof, with the testing requirements of 935 CMR 500.160.

(7) A Marijuana Cultivator may label Marijuana and Marijuana Products with the word "organic" only if all cultivation is consistent with US Department of Agriculture organic requirements at 7 CFR 205: National Organic Program and consistent with MDAR requirements for Pesticide usage;

(8) Soil for cultivation shall meet federal standards identified by the Commission including, but not limited to, the U.S. Agency for Toxic Substances and Disease Registry's Environmental Media Evaluation Guidelines for residential soil levels.

(9) The cultivation process shall use best practices to limit contamination including, but not limited to, mold, fungus, bacterial diseases, rot, pests, Pesticides not in compliance with 935 CMR 500.120(5) for use on Marijuana, mildew, and any other contaminant identified as posing potential harm. Best practices shall be consistent with state and local law including, but not limited to, the Commission's Guidance on Integrated Pest Management.

(10) Any application of plant nutrient to land used for the cultivation of Marijuana shall comply with St. 2012, c. 262, as amended by St. 2013, c. 118, § 26, and 330 CMR 31.00: Plant Nutrient Application Requirements for Agricultural Land and Non-agricultural Turf and Lawns.

(11) A Marijuana Cultivator shall satisfy minimum energy efficiency and equipment standards established by the Commission and meet all applicable environmental laws, regulations, permits and other applicable approvals including, but not limited to, those related to water quality and quantity, wastewater, solid and hazardous waste management, and air pollution control, including prevention of odor and noise pursuant to 310 CMR 7.00: Air Pollution Control as a condition of obtaining a final license under 935 CMR 500.103(2) and as a condition of renewal under 935 CMR 500.103(4). A Marijuana Cultivator shall adopt and use additional best management practices as determined by the Commission, in consultation with the working group established under St. 2017, c. 55, § 78(b) or applicable departments or divisions of the EOEEA, to reduce energy and water usage, engage in energy conservation and mitigate other environmental impacts, and shall provide energy and water usage reporting to the Commission in a form determined by the Commission. Each license renewal application under 935 CMR 500.103(4) shall include a report of the Marijuana Cultivator's energy and water usage over the 12-month period preceding the date of application. Marijuana Cultivators shall be subject to the following minimum energy efficiency and equipment standards:

(a) The building envelope for all facilities, except Greenhouses, shall meet minimum Massachusetts Building Code requirements and all Massachusetts amendments (780 CMR: Massachusetts Amendments to the International Building Code 2009), International Energy Conservation Code (IECC) Section C402 or The American Society of Heating, Refrigerating and Air-conditioning Engineers (ASHRAE) Standard 90.1 Sections 5.4 and 5.5 as applied or incorporated by reference in 780 CMR: Massachusetts Amendments to the International Building Code 2009, except that facilities using existing buildings may demonstrate compliance by showing that the envelope insulation complies with code minimum standards for Type Factory Industrial F-1, as further defined in guidelines issued by the Commission.

(b) Lighting used for Cannabis cultivation shall meet one of the following compliance requirements:

1. Horticulture Lighting Power Density may not exceed 36 watts per square foot, except for Tier 1 and Tier 2 which may not exceed 50 watts per square foot; or

2. All horticultural lighting used in a facility is listed on the current Design Lights Consortium Solid-state Horticultural Lighting Qualified Products List ("Horticultural QPL") or other similar list approved by the Commission as of the date of license application, and lighting Photosynthetic Photon Efficacy (PPE) is at least 15% above the minimum Horticultural QPL threshold rounded up to the nearest 0.1 µmol/J (micromoles per joule).

3. A facility seeking to use horticultural lighting not included on the Horticultural QPL or other similar list approved by the Commission shall seek a waiver pursuant to 935 CMR 500.850 and provide documentation of third-party certification of the energy efficiency features of the proposed lighting. All facilities, regardless of compliance path, shall provide third-party safety certification by an OSHA NRTL or SCC-recognized body, which shall certify that products meet a set of safety requirements and standards deemed applicable to horticultural lighting products by that safety organization.

(c) Heating Ventilation and Air Condition (HVAC) and dehumidification systems shall meet Massachusetts Building Code requirements and all Massachusetts amendments (780 CMR: Massachusetts Amendments to the International Building Code 2009), IECC Section C403 or ASHRAE Chapter 6 as applied or incorporated by reference in (780 CMR: Massachusetts Amendments to the International Building Code 2009). As part of the documentation required under 935 CMR 500.120(11)(b), a Marijuana Cultivator shall provide a certification from a Massachusetts Licensed Mechanical Engineer that the HVAC and dehumidification systems meet Massachusetts building code as specified in 935 CMR 500.120(11)(c) and that such systems have been evaluated and sized for the anticipated loads of the facility.

(d) Safety protocols shall be established and documented to protect workers, Consumers, or Visitors (e.g., eye protection near operating Horticultural Lighting Equipment).

(e) Requirements in 935 CMR 500.120(11)(b) and (c) shall not be required if an indoor Marijuana Cultivator is generating 80% or more of the total annual on-site energy use for all fuels (expressed on a MWh basis) from an on-site clean or renewable generating source, or renewable thermal generation, as provided in M.G.L. c. 25A § 11F and 11F½. Additionally, the Marijuana Establishment shall document that renewable energy credits or alternative energy credits representing the portion of the Licensee's energy usage not generated onsite have been purchased and retired on an annual basis.

(f) Prior to final licensure, a Marijuana Cultivator Licensee shall demonstrate compliance with 935 CMR 500.120(11), by submitting an energy compliance letter prepared by a Massachusetts Licensed Professional Engineer or Massachusetts Licensed Registered Architect with supporting documentation, together with submission of building plans under 935 CMR 500.103. For a Microbusiness or Craft Marijuana Cooperative with a cultivation location sized as Tier 1 or Tier 2, or such other Marijuana Cultivators that have been granted a waiver under 935 CMR 500.850, compliance with any of the requirements of 935 CMR 500.120(11) may be demonstrated through an energy compliance letter or updated energy compliance letter prepared by one or more of the following energy professionals:

1. A Certified Energy Auditor certified by the Association of Energy Engineers;

2. A Certified Energy Manager certified by the Association of Energy Engineers;

3. A Massachusetts Licensed Professional Engineer; or

4. A Massachusetts Licensed Registered Architect.

(g) A CMO with a final Certificate of Licensure issued before November 1, 2019 shall have until July 1, 2020 to comply with 935 CMR 500.120(11), except that any additions to or renovations to a facility shall comply with 935 CMR 500.120(11). A CMO subject to 935 CMR 500.120(11)(g) may apply for an additional six-month extension if it agrees to install meters to monitor energy usage, water usage and other data determined by the Commission as necessary in order to provide reports on energy usage, water usage, waste production and other data in a form and manner determined by the Commission.

(h) For purposes of 935 CMR 500.120(11), the following terms shall have the following meanings:

1. Horticultural Lighting Equipment (HLE) means any lighting equipment (e.g., fixtures, bulbs, ballasts, controls, etc.) that uses energy for the cultivation of plants, at any stage of growth (e.g., germination, cloning/Mother Plants, Propagation, Vegetation, Flowering, and harvest).

2. Horticulture Lighting Square Footage (HLSF) means an area to be calculated in square feet and measured using clearly identifiable boundaries of all areas(s) that will contain plants at any point in time, at any stage of growth, including all of the space(s) within the boundaries, HLSF may be noncontiguous, but each unique area included in the total HLSF calculations shall be separated by an identifiable boundary which includes, but is not limited to: interior walls, shelves, Greenhouse walls, hoop house walls, garden benches, hedge rows, fencing, garden beds, or garden plots. If plants are being cultivated using a shelving system, the surface area of each level shall be included in the total HLSF calculation.

3. Lighting Power Density (HLPD) means a measure of total watts of Horticultural Lighting Equipment per total Horticulture Lighting Square Footage, (HLE / HLSF = HLPD) expressed as number of watts per square foot.

(12) In addition to the written operating policies required under 935 CMR 500.105(1), a Marijuana Cultivator, including CMO Marijuana Cultivators and MTCs, shall maintain written policies and procedures for the cultivation, production, Transfer or distribution of Marijuana, as applicable, which shall include, but not be limited to:

(a) Methods for identifying, recording, and reporting diversion, theft, or loss, for correcting all errors and inaccuracies in inventories, and for maintaining accurate inventory. The policies and procedures, at a minimum, shall comply with 935 CMR 500.105(8);

(b) Policies and procedures for handling voluntary and mandatory recalls of Marijuana. Such procedures shall be adequate to deal with recalls due to any action initiated at the request or order of the Commission, and any voluntary action by a Marijuana Establishment to remove defective or potentially defective Marijuana from the market, as well as any action undertaken to promote public health and safety;

(c) Policies and procedures for ensuring that any outdated, damaged, deteriorated, mislabeled, or contaminated Marijuana is segregated from other Marijuana and destroyed. Such procedures shall provide for written documentation of the disposition of the Marijuana. The policies and procedures, at a minimum, shall comply with 935 CMR 500.105(12);

(d) Policies and Procedures for Transportation. The policies and procedures, at a minimum, shall comply with 935 CMR 500.105(13);

(e) Policies and procedures to reduce energy and water usage, engage in energy conservation and mitigate other environmental impacts. The policies and procedures, at a minimum, shall comply with 935 CMR 500.105(15) and 935 CMR 500.120(11);

(f) Policies and procedures for ensuring fire safety in cultivation activities including, but not limited to, the storage and processing of chemicals or fertilizers, in compliance with the standards set forth in 527 CMR 1.00: The Massachusetts Comprehensive Fire Safety Code;

(g) Policies and procedures for the Transfer, acquisition, or sale of Marijuana between Marijuana Establishments;

(h) Policies and procedures for developing and providing Vendor Samples to a Marijuana Product Manufacturer, a Marijuana Retailer or a Delivery Operator. Policies and procedures shall include methods by which the Marijuana Cultivator will adequately track, record, and document all Vendor Samples developed on, or provided from, the licensed Premises in satisfaction of 935 CMR 500.120(13);

(i) Policies and procedures for developing and providing Quality Control Samples to employees for the purpose of ensuring product quality and determining whether to make the product available to sell. Policies and procedures shall include methods by which the Marijuana Cultivator will adequately track, record, and document all Quality Control Samples developed on, or provided from, the licensed Premises in satisfaction of 935 CMR 500.120(14). Policies and procedures shall further prohibit consumption of Quality Control Samples on the licensed Premises; and

(j) Policies and procedures for packaging Marijuana and White Labeling Marijuana Cultivators shall retain all Wholesale Agreements entered into with Delivery Operators and shall make them available to the Commission upon request.

(13)Vendor Samples.

(a) A Marijuana Cultivator may provide a Vendor Sample of Marijuana flower to a Marijuana Product Manufacturer or to a Marijuana Retailer. Provision of a Vendor Sample under 935 CMR 500.120(13) shall not be considered a prohibited practice under 935 CMR 500.105(4)(b)20.

(b) Vendor Samples provided under 935 CMR 500.120(13):

1. May not be consumed on any licensed Premises;

2. May not be sold to another licensee or Consumer;

3. Shall be tested in accordance with 935 CMR 500.160; and

4. Shall be transported in accordance with 935 CMR 500.105(13). A Marijuana Cultivator may include Vendor Samples with other Marijuana flower intended for transportation to an individual Marijuana Product Manufacturer or an individual Marijuana Retailer;

(c)Vendor Sample limits. A Marijuana Cultivator is limited to providing the following aggregate amount of Vendor Samples to an individual Marijuana Product Manufacturer or an individual Marijuana Retailer in a calendar month period: Four grams per strain of Marijuana flower and no more than seven strains of Marijuana flower.

(d) All Vendor Samples provided by a Marijuana Cultivator under 935 CMR 500.120(13) shall be assigned a unique, sequential alphanumeric identifier and entered into the Seed-to-sale SOR in a form and manner to be determined by the Commission, and further, shall be designated as "Vendor Sample";

(e) Vendor Samples provided under 935 CMR 500.120(13) shall have a legible, firmly Affixed label on which the wording is no less than ¹/₁₆ inch in size containing at minimum the following information:

1. A statement that reads: "VENDOR SAMPLE NOT FOR RESALE";

2. The name and registration number of the Marijuana Cultivator;

3. The quantity, net weight, and type of Marijuana flower contained within the package; and

4. A unique sequential, alphanumeric identifier assigned to the Cultivation Batch associated with the Vendor Sample that is traceable in the Seed-to-sale SOR.

(14)Quality Control Samples.

(a) A Marijuana Cultivator may provide a Quality Control Sample of Marijuana flower to its employees for the purpose of ensuring product quality and determining whether to make the product available to sell. Provision of a Quality Control Sample under 935 CMR 500.120(14) shall not be considered a prohibited practice under 935 CMR 500.105(4)(b)20.

(b) Quality Control Samples provided to employees under 935 CMR 500.120(14):

1. May not be consumed on the licensed Premises;

2. May not be sold to another licensee or Consumer; and

3. Shall be tested in accordance with 935 CMR 500.160.

(c)Quality Control Sample Limits. A Marijuana Cultivator is limited to providing the following aggregate amount of Quality Control Samples to all employees in a calendar month period: Four grams per strain of Marijuana flower and no more than seven strains of Marijuana flower.

(d) All Quality Control Samples provided by a Marijuana Cultivator under 935 CMR 500.120(14) shall be assigned a unique, sequential alphanumeric identifier and entered into the Seed-to-sale SOR in a form and manner to be determined by the Commission, and further, shall be designated as "Quality Control Sample."

(e) Quality Control Samples provided under 935 CMR 500.120(14) shall have a legible, firmly Affixed label on which the wording is no less than ¹/₁₆ inch in size containing, at minimum, the following information:

1. A statement that reads: "QUALITY CONTROL SAMPLE NOT FOR RESALE";

2. The name and registration number of the Marijuana Cultivator;

3. The quantity, net weight, and type of Marijuana flower contained within the package; and

4. A unique sequential, alphanumeric identifier assigned to the Cultivation Batch associated with the Quality Control Sample that is traceable in the Seed-to-sale SOR.

(f) Upon providing a Quality Control Sample to an employee, the Marijuana Cultivator shall record:

1. The reduction in quantity of the total weight or item count under the unique alphanumeric identifier associated with the Quality Control Sample;

2. The date and time the Quality Control Sample was provided to the employee;

3. The agent registration number of the employee receiving the Quality Control Sample; and