Massachusetts Lighting Regulations Explained?

If you are interested in the back story on this article see the original post on the topic here: https://www.dhirubhai.net/posts/markedoherty_cannabis-massachusetts-regulatorycompliance-activity-6630480598777544704-xj4l

The following is an analysis of 935 CMR 500.120(11) based on review of all documents posted on the Massachusetts Cannabis Control Commission website, https://mass-cannabis-control.com/, and email’s between myself and members of the CCC. I should note that while the CCC was very helpful at clarifying my original questions/confusion on this matter, additional questions arose about the language and interpretation of the regulations which they declined to answer. A full transcript of the emails between myself and the CCC follows the analysis.

The answer is….

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).

Horticulture Lighting Square Footage (HLSF) means Canopy.

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.

Seems fairly straightforward, right? The total wattage of the lights divided by the total canopy. Well not so much. You see, Canopy is further defined by the CCC in the document Energy and Environment Compiled Guidance January 2020 as:

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

What is a “mature plant”? Answer: any plant over 8” tall. So does that mean that only canopy where plants are over 8” tall is part of the HLPD equation?

And what about the words “total watts”, as in total watts of Horticultural Lighting Equipment? I think this means the total connected load of the fixture, as opposed to the delivered load of the fixture (bulb wattage), which would make sense. A “1000 watt” fixture is over 1000 watts total.

 So then the HLPD equation is: Total connected load HLE plants > 8” / HLSF (Canopy) plants > 8”

But what if total watts means total watts of all the lights in the facility, and then the canopy number is only canopy over 8” tall?

 So then the HLPD equation is: Total connected load HLE / HLSF (Canopy) plants > 8”

I would think the former makes more sense, but am not 100% sure because when I asked the CCC to clarify these final points I was told they (the CCC) could not offer legal advice and to consult a lawyer.

So this all would lead me to believe that the answer, to be sure a cultivation facility is in compliance with 935 CMR 500.120(11) is: Buy LED’s that are on the DLC list!  

Hopefully the next round of guidance on this topic from the CCC will take into account the confusion in the market on this matter as well as the impact on CAPEX, OPEX, and revenue that lighting has on a cultivation facility.

__________________________________________________________________________

Emails between Mark and the CCC (should that be something that interests you)

Mark Doherty <[email protected]>

Feb 5, 2020, 8:58 AM (5 days ago)

to [email protected]

Hi Kay,

Thank you for your willingness to help clear this up. Here are a few questions I have. 

1) The original language called out the wattage restrictions using the term canopy. So companies like mine who provide light plans to cannabis growers would use the sqft of canopy to determine if the 36w or 50w thresholds were met. The new language does not include the term canopy. Is it the intention of the new language to take the entire sqft of the area dedicated to cultivation in the lighting equation? 

2) Is the cultivation area defined as all crop growth areas? Eg; mom, clone, veg, flower, so all of the sqft and all of the lighting in these areas are used in the calculation? 

3) If canopy is not used in the calculation, but rather sqft/floor space, then how are vertical systems calculated? 

Thanks again, appreciate your time. Would be happy to discuss further or clarify these questions as needed. 

Not sure how much of the LinkedIn post you read? But the post came out of a call I had with the legal department at Hawthorne (the own Gavita). Their position is to interpret the regs as written, which was different than how my design team was interpreting them. 

Then if you read the comments on my Linkedin post and on the Instagram post I did, their are several license holding cultivators in Massachusetts with different interpretations of the language/regs. So clearly there is some confusion in the market on this one. 

Best

Mark

Kay Doyle

Wed, Feb 5, 10:45 AM (5 days ago)

to Rebecca, Matt, me

Mark, could you tell us what documents you are looking at? Both the adult use regulations and the guidance refer to canopy, so I need to understand where the confusion is coming from. Thanks for your help.

 Kay Doyle, Esq.

Commissioner

Cannabis Control Commission

Union Station

2 Washington Square

Worcester, MA 01604

774.415.0457 | [email protected]

Kay,

I accessed the documents from this page: https://mass-cannabis-control.com/the-laws/

 This document: ? 935 CMR 500.000: Adult Use of Marijuana which appears to read the same, regarding the lighting requirements, as this one: ? 935 CMR 501.000: Medical Use of Marijuana

Which then, under 500.120 (11), reads as follows: 

(b) Lighting used for Cannabis Cultivation must meet one of the following compliance requirements: 

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

The previous issuance of this regulation indicated "per-square foot of canopy", the deletion of the term canopy in this language is where the question lies. Perhaps there is another section which clarifies this point and addresses the question on vertical cultivation as it relates to the lighting requirements? 

Thanks for you time in this matter. 

Mark 

Kay Doyle

Wed, Feb 5, 2:07 PM (5 days ago)

to me, Rebecca, Matt

As you point out, 935 CMR 500.120(11)(b)1. now states:

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

 In our regulations, if you see a term capitalized, it often means the term is defined, as Lighting Power Density is. I think if you look at these terms (which you will find in 935 CMR 500.004 and 935 CMR 500.120(11)(h)), it might help:

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).

 Horticulture Lighting Square Footage (HLSF) means Canopy.

 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.

 Also, I don’t know if you were reacting to the posting of the Energy & Environmental Compiled Guidance or if it was coincidence, but just in case, please check out: https://mass-cannabis-control.com/wp-content/uploads/2020/02/Energy_and_Environment_Compiled_Guidance_01.2020.pdf.

 Thanks for reaching out and please encourage your colleagues to let us know where they are running into problems, so we can look at their issues too. 

Mark Doherty <[email protected]>

Wed, Feb 5, 6:47 PM (5 days ago)

to Kay, Rebecca, Matt

Hi Kay, 

 Thanks for the follow up here. I had not seen the Environment Compiled Guidance although I had looked a week or so ago to see if there was guidance on the topic, I may have missed it. What triggered me throwing the question out on LI was a conversation that I had with someone in legal at Hawthorne (Gavita) after their team had provided mine with a light plan that we found unacceptable. Their explanation was, look at the new regs it doesn't say canopy anymore. 

 So I think it is pretty clear, thanks again for the explanation, but I did want to check one thing out. in the guidance doc it says the following

Canopy means an area to be calculated in square feet and measured using clearly identifiable boundaries of all areas(s) that will contain mature plants at any point in time, including all of the space(s) within the boundaries, Canopy may be noncontiguous ...

 What is the definition of a mature plant? Is it only canopy and lights over that canopy that may be counted in the wattage restriction? So perhaps clone does not count? 

 Again, thanks so much for your time. I look forward to fully understanding these regulations so that we can better serve our customers in Massachusetts. 

Best,

Mark 

Rebecca Lopez

Feb 6, 2020, 9:57 AM (4 days ago)

to me, Kay, Matt

Good Morning,

Pursuant to published agency guidance, a mature plant is defined as plants greater than eight inches tall.

For your reference, please see the Massachusetts Seed-to-Sale Guidance, published in September 2018. An updated draft Massachusetts Seed-to-Sale Guidance is currently accepting public comment until 2/10/20, however, the definitions for immature and mature plants remain unchanged at this time.

 I hope this answers your question.

 Thank you,

Mark Doherty <[email protected]>

Thu, Feb 6, 11:48 AM (4 days ago)

to Rebecca, Kay, Matt

Hi Rebecca, 

Thanks so much for your response! I reviewed the document, thanks for sharing, I assume based on the language that the height of the plant is from the level of the rooting media? Additionally I would just like to confirm that based on all of this information plants and the lighting associated with those plants which are under 8" tall, such as clones and early veg, are not taken into account in the watts per sqft calculation, in other words that canopy and wattage associated with plants less than 8" has no bearing? 

 Again, thanks to everyone on this email for your assistance. I am really not trying to be a bother with all of my questions. But I am getting differing information from various stake-holders, such as operational cultivators in Massachusetts, who really "should know". As we work with a large number of cultivation facilities in your state which are soon to be operational and those who are currently operating, I hope to be able to clearly articulate the rules around lighting as it impacts capex, opex, and revenue, so dramatically. 

Best,

Mark

Rebecca Lopez

Feb 6, 2020, 2:59 PM (4 days ago)

to me, Kay, Matt

Good Afternoon,

Thank you for bringing these questions to our attention. They are very useful.

 We cannot offer legal advice; but, as covered previously, our regulations define Horticultural Lighting Square Footage as canopy, and further, define canopy as an area to be “measured using clearly identifiable boundaries of all areas(s) that will contain mature plants at any point in time”.  The seed-to-sale guidance documents, in turn, define mature plants. 

That is the most information that we can provide at this time. For a legal opinion, we recommend consulting with a licensed attorney. Licensees may also submit questions to the Commission inspector or compliance officer assigned to their matter.

Much appreciated,