TITLE

AN ORDINANCE ESTABLISHING A CONDITIONAL USE PERMITTING
SYSTEM TO CONTROL NOXIOUS ODORS FROM LARGE AGRICULTURAL
OPERATIONS
 

SECTION 1 GENERAL

1.1. Title. This Ordinance shall be cited as the Monroe Township Noxious Agricultural Odors Ordinance.

1.2 Intent. Monroe Township Board of Supervisors have always encouraged the growth of small scale, sustainable farm operations in Monroe Township that do not interfere with the use and enjoyment of adjacent properties owned by Monroe Township residents. The Monroe Township Board of Supervisors has determined that it is in the interest of the general health, safety, and welfare to take prudent steps to control the emissions of noxious odors from large agricultural operations that interfere with the use and enjoyment of property by adjacent landowners. The intent of this Ordinance is to:

A. Promote the general health, welfare, and safety of the citizens of Monroe Township.

B. Minimize danger to public health by protecting Monroe Township residents from possible health effects and lost productivity caused by noxious odors produced by large agricultural operations.

C. Minimize the impact of the emission of noxious odors from large agricultural operations upon Monroe Township's tourist industry.

D. Provide guidance, through the conditional permit process, for landowners that wish to engage in large agricultural operations that produce noxious odors.

E. Inform the operators and owners of large agricultural operations that produce noxious odors who do not follow the procedures and practices established in this Ordinance that they may be in violation of this Ordinance and other Commonwealth and Federal air pollution control laws.

1.3 Applicability. This Ordinance requires all persons, partnerships, businesses and corporations who have constructed or are constructing large agricultural operations which contain a certain number of livestock per acre to obtain a conditional use permit from the Township and to prepare and submit an Odor Control Plan to the Monroe Township Board of Supervisors.The contents of the Odor Control Plan shall be established within this Ordinance. Approval of an Odor Control Plan and issuance of a permit for operations is necessary prior to the operation of the agricultural operation. All existing livestock or poultry operations shall only be subject to the provisions of this Ordinance when the Monroe Township Odor Control Officer, upon inspection, discovers one of the following conditions:

A. A situation exists which is causing, or is substantially threatening to cause, the emissions of noxious odors which are affecting, or will affect, adjacent landowners to the agricultural operations.

B. All Landowners adjacent to an agricultural operation petition the Monroe Township Board of Supervisors to include the operator or owner of a large agricultural operation under the provisions of this Ordinance.

1.4 Exceptions. Certain existing and proposed agricultural operations may be exempt from certain requirements of this Ordinance as follows:

A. To the extent that non-commercial farming operations are excluded from the definition of "large agricultural operations", such farms are exempt from the provisions of this ordinance.

B. All agricultural livestock operations are exempted from the requirements of this Ordinance if the density of the livestock is less than one animal unit per acre. These operations are exempted unless and until additional animal units are added to those operations.

C. To the extent that a commercial farming operation does not qualify as a "Large Agricultural Operation" under the provisions of this Ordinance.

1.5 Statement of Law. It is hereby declared by the Monroe Township Board of Supervisors that emissions of noxious odors from Large Agricultural Operations shall be deemed a violation of this Ordinance.

SECTION 2 - DEFINITIONS

2.1 General Definitions. For Purposes of this Ordinance, the following general terms shall have the corresponding interpretation:

A. Words in the singular include the plural and those in the plural include the singular.

B. Words used in the present tense include the future tense.

C. The words "person", "Applicant", "operator", and "owner", include a corporation, unincorporated association, partnership, or any other business form assembled to carry out any business purpose; as well as an individual engaged in activities governed by this Ordinance.

D. The word "large agricultural operation" shall be construed as if followed by the phrase "or part thereof."

E. The words "should" and "may" are permissive; the words "must", "shall", and "will" are mandatory and directive.

2.2 Specific Definitions. For the purposes of this Ordinance, the following terms shall have the corresponding interpretation:
 

(1) "Animal Unit". A unit of measure to compare various animal types. One animal unit, equals the following:
1 beef feeder or slaughter animal, .5 swine. 1 dairy cow, 100 broiler chickens, 50 turkeys, 30 laying hens, ten sheep, and 1 horse.

(2) "Application for Permit". A completed form, signed by the Applicant, requesting a permit from the Monroe Township Supervisors to construct a Large Agricultural Operation. Such Application shall be submitted with an Odor Control Plan that conforms to the requirements established by the Monroe Township Odor Control Officer and satisfies the requirements set forth by this Ordinance.

(3) "Board". The Monroe Township Board of Supervisors.

(4) "Large Agricultural Operation". The management and use of farming resources for the production of livestock and poultry that utilizes, as a permanent population of animal units, over 200 animal units, and which is subject to regulation under the Nutrient Management Act, 3 P.S. ¤1701 et. seq.

(5) "Notice of Violation". A written notice sent by certified mail from the Odor Control Officer to the owner or operator of a Large Agricultural Operation that, according to an on-site inspection, its activities are in violation of certain provisions of this Ordinance.

(6) "Monroe Odor Control Trust Fund." A monetary fund created by the Township to be the depository for fines collected under this Ordinance and for conditional use permit application fees. These monies shall be used for compensation of the Odor Control Officer and for cleanup and control of noxious odors.

(7) "Odor Control Plan". A plan prepared by the owner or operator of a Large Agricultural Operation that identifies the nature of the odors produced by the operation and that specifies practices to be undertaken by the owner or operator to minimize the noxiousness of those odors.

(8) "Odor Control Officer". The agent of the Township of Monroe responsible for the review, approval, permitting, inspection, and enforcement of Odor Control Plans. This Officer shall be an employee of the Township and shall be compensated for this duties under this Ordinance from the Monroe Odor Control Trust Fund.

(9) "Owner of a Large Agricultural Operation". Anyone who owns, either individually and/or with any other persons, any of the following interests in the real property upon which a Large Agricultural Operation is situated:

A. Fee simple title;
B. A leasehold interest;
C. Any interest in an entity which holds fee simple title; or
D. Any interest in any entity which has a leasehold interest.

(10) "Permit". The conditional use permit required by the Monroe Township Board of Supervisors for the operation of a Large Agricultural Operation. Such permit will consist of a certificate of operation approved by the Monroe Township Odor Control Officer.

(11) "Permit Revocation". A written statement by the Odor Control Officer to the Permittee that the permit issued is being revoked for failure to comply with provisions of this Ordinance.

(12) "Production of Livestock and Poultry". All persons, partnerships, businesses and corporations engaged in the business of raising any livestock or poultry for commercial production and sale of meat, eggs, milk, or other by-product, rather than for private consumption.

(13) "Variance". The permission granted by the Monroe Township Board of Supervisors for a waiver of certain provisions of this Ordinance, or from the requirements of a notice of violation issued by the Odor Control Officer, which, if strictly adhered to, would result in an unnecessary hardship, and where the permission granted would not be contrary to the public interest, and would maintain the spirit and original intent of this Ordinance.

SECTION 3 - ODOR CONTROL PLANS

3.1. Contents. The Odor Control Plan shall include the following information:

A. The number, in animal units, of livestock or poultry that will be raised annually on the land tract owned or operated by the Large Agricultural Operation;

B. A general description of the land that is the location of the Large Agricultural Operation and the position of animal units on that land;

C. A copy of the nutrient management plan for the Large Agricultural Operation;

D. Location and amounts of wastes that may produce noxious odors that may affect adjacent landowners.

E. Methods that will be utilized by the owner or operator to eliminate and minimize the production of noxious odors from the Large Agricultural Operation, including a listing of application dates and chemicals or other materials that will be used for odor control;

F. Scaled mapping or aerial photography indicating the location or expected locations of all structures where livestock or poultry will be raised and all structures and fields where nutrients or agricultural chemical products are proposed to be stored or applied.  Such mapping shall be completed on a USGS Topography Map.

SECTION 4 PERMIT ISSUANCE

4.1. Permits Required. All existing and proposed agricultural operations that are subject to the provisions of this Ordinance shall be required to obtain a permit from the Odor Control Officer, in accordance with the provisions of this Ordinance.

4.2 Application Procedure. An application form requesting an Odor Control Permit shall be completed, signed, and filed by the owner or operator of the Large Agricultural Operation. Upon request, the Odor Control Officer of the Township shall supply the owner or operator with a copy of this Ordinance and a listing of the necessary supporting documents to be submitted with the application.

4.3 Required Information. Applications for a permit, pursuant to the provisions of this Ordinance, shall be made to the Odor Control Officer on forms provided by the Officer. The owner or operator of the Large Agricultural Operation shall submit the permit application, a permit fee, and an Odor Control Plan to the Odor Control Officer.

4.4. Issuance of Permits. The Odor Control Officer shall notify the Applicant, in writing, of the decision to approve or deny the request for a permit within ninety (90) calendar days after receiving a completed application and the necessary supporting documents. An approved permit may be obtained in person, by the Applicant or ApplicantÕs agent, or the permit may be sent by certified mail, return receipt requested, if requested by the Applicant.

4.5 Grounds for Denial. The Odor Control Officer shall deny the application for an Odor Control Permit if:

(1) The necessary supporting documentation is not submitted with the application; or

(2) The necessary supporting documents are inadequate and fail to comply with the provisions of this Ordinance; or

(3) The owner or operator has previously violated environmental protection statutes of the Commonwealth, or the environmental protection statutes of other states or of the federal government, including, but not limited to, any violations of the provisions of any state or federal statute relating to environmental protection or to the protection of public health, safety, and welfare or any rule or regulation, order or any condition of any license issued by any state or federal regulatory agency; or

(4) The Odor Control Officer has reason to believe that the owner or operator of the Large Agricultural Operation has shown a lack of ability or intention to comply with the requirements of this Ordinance.

4.6. Grounds for Denial. The Odor Control Officer may deny the application for an Odor Control Permit if:

(1) The owner or operator of the Large Agricultural Operation unduly delays in making an application for an Odor Control Permit.

4.7. Fees To obtain a permit and to defray the cost of operations for the Odor Control Officer, the Applicant shall remit a fee to the Township of Monroe in the amount of Forty Thousand Dollars ($40,000), payable by cash or check. These monies shall be placed into the "Monroe Odor Control Trust Fund", a fund to be administered for liability, cleanup, and other costs associated with the Odor Control Ordinance.

4.8. Effect of Permit. A permit granted pursuant to the provisions of this Ordinance shall entitle the Applicant or Operator to engage in the activities covered in the application. The Applicant or Operator shall comply fully with all applicable provisions of this Ordinance.

SECTION FIVE - APPEALS FROM PERMIT DENIAL

5.1. Notice of Denial. Notice of denial of permit pursuant to the provisions of this Ordinance shall be sent to the Applicant, in writing, by certified mail, return receipt requested, and shall plainly set forth the reason for the denial, whether mandatory or discretionary.

5.2. Remedy and Appeal. The Applicant, upon receipt of notice of denial, shall have fifteen (15) calendar days to undertake one of the following steps:

A. Revise the application according to the requirements specified in the denial notice.

B. Request an extension of time to revise the application. Such extensions may be granted by the Odor Control Officer for the minimum duration appropriate to the situation. Such an extension shall be granted in writing.

C. Request an appeal hearing before the Monroe Township Board of Supervisors.

5.3. Failure to Remedy or Appeal. If the Applicant fails to notify the Odor Control Officer of a decision to act pursuant to Section 5.2 within fifteen (15) calendar days, the denial shall become effective on the sixteenth (16) calendar day.
 
 

SECTION SIX - ENFORCEMENT

6.1 Responsibility. Enforcement of the provisions of this Ordinance shall be the responsibility of the Odor Control Officer upon consultation with, and assistance from, the Monroe Township Board of Supervisors.

6.2. Inspection and Notification of Violation. The Odor Control Officer shall inspect Large Agricultural Operations throughout the Township. Any owner or operator suspected of being in violation of this Ordinance shall be sent, via certified mail, a written notice from the Odor Control Officer which shall clearly state the provisions of this Ordinance which appear to have been violated. Any operation notified of suspected violation of the provisions of this Ordinance shall have fifteen (15) calendar days to contact the Odor Control Officer.

6.3. Operator Response. The owner or operator shall have thirty (30) calendar days after contacting the Odor Control Officer to:

A. Demonstrate to the satisfaction of the Odor Control Officer that no violation exists.

B. Bring the operation into compliance with the provisions of this Ordinance as cited by the Odor Control Officer.

C. Request, in writing, an extension of time to bring the operation into compliance with the cited provision of this Ordinance.

The owner or operator shall notify the Odor Control Officer of the intent to act pursuant to either paragraph "A", "B", or "C" above within the fifteen days established to contact the Odor Control Officer.

6.4 Failure to Respond. Failure of the owner or operator to comply with the provisions of Section 6.3 to the full satisfaction of the Odor Control Officer shall result in the issuance of a Violation, which shall constitute a Cease and Desist Order. Other legal action may be taken, as necessary by the Monroe Township Board of Supervisors with assistance from the solicitor and the Odor Control Officer to halt said violation.

6.5 Rebuttable Presumption. It shall be presumed as a rebuttable presumption of law that the owner or operator of a Large Agricultural Operation is liable and responsible for all damages and air contamination within three miles of the boundaries of the Large Agricultural Operation. In order to rebut this presumption, the owner or operator must affirmatively prove by clear and convincing evidence that the owner or operator did not contribute to the emission of noxious odors.

6.6. Emergency Procedure. In the event that a situation exists which is causing, or is substantially threatening to cause, either (a) damage to life or property, or (b) significant decreases in the quality of life for adjacent landowners, the Township may require an immediate response by the owner or operator to correct such situation, which action shall be specified by the Odor Control Officer or the Monroe Township Board of Supervisors. In the event that the owner or operator fails to comply with such requirement, the Township may undertake such necessary action to enjoin the emission of the noxious odors. Such costs for this action shall be reimbursed to the Township through the "Monroe Odor Control Trust Fund". The Township shall then take appropriate action to recover these costs from the owner or operator, and the owner or operator may face prosecution under the provisions of this Ordinance or under the appropriate Commonwealth Statute protecting against criminal negligence.

6.7. Penalties. Any owner or operator found in violation of the provisions of this Ordinance shall pay all court costs required to obtain enforcement, including the payment of all fines imposed. Any owner or operator, upon being found found in violation of the provisions of this Ordinance shall pay a fine of not less than One Thousand ($1,000) and not more than Two-Thousand ($2,000) for each day the violation exists. This penalty shall exist independently of any monies assessed for clean-up or prevention of the emission of noxious odors.

SECTION SEVEN - APPEALS

7.1. Appeal Procedure. Any person aggrieved by the decision of the Odor Control Officer may file an appeal with the Chairperson of the Monroe Township Board of Supervisors to be heard at a duly advertised public hearing. Appeals to the Board shall be filed, in writing, with the Chairperson within thirty (30) days after notice of the decision of the Odor Control Officer. The Board shall hold a hearing upon the aggrieved personÕs request within thirty (30) days after the request is filed with the Chairperson. After submitting a challenge to the Board, and upon the decision by the Board, any party still aggrieved may appeal such decision to the Court of Common Pleas.

SECTION EIGHT - THE MONROE ODOR CONTROL TRUST FUND

8.1. Establishment. There shall be established a "Monroe Odor Control Trust Fund" that shall be administered by the Monroe Township Board of Supervisors.

8.2. Content. The Trust Fund shall contain all permit application monies collected from Applicants under this Ordinance. The Fund shall also contain monies collected from monetary penalties and fines paid to the Board under the enforcement provisions of this Ordinance.

8.3. Use. Monies from the Trust Fund shall be disbursed for the following purposes:

A. To provide for the salary of the Odor Control Officer and for costs associated with the Officer's enforcement of the sections of this Ordinance;

B. To educate and inform the residents of the Township concerning the health effects of noxious odors and air pollution produced by Large Agricultural Operations;

C. To provide monies for emergency situations identified under Section 6.6 of this Ordinance. Such monies are to be replaced through suits brought for compensation against the owner or operator of the Large Agricultural Operation;

D. To provide monies for additional technical reviews, if necessary, of the permit applications submitted to the Odor Control Officer.

8.4. Accounting. Such Trust Fund shall be established in a separate financial account, with an accounting of those monies available to Township residents upon request made, in writing, to the Odor Control Officer. Such accounting must be produced within three days of the written request.

SECTION NINE - OPERATIONAL STANDARDS

9.1 Financial Security Required. In addition to the establishment of the Monroe Odor Control Trust Fund, the owner or operator of a Large Agricultural Operation shall post financial security for all new Large Agricultural Operations that shall begin operation after the effective date of the passage of this Ordinance. New owners and operators of already existing Large Agricultural Operations shall also post financial security for these operations. This financial security shall protect the Township from assuming the financial responsibility for the failure of the owner or operator to contain the emission of noxious odors from the Large Agricultural Operation and any injuries produced by such releases.

9.2. Form of Financial Security. The form of security shall be either a surety bond, an irrevocable letter of credit, or other such security as may be accepted by the Township which has been issued by an insured financial institution which is legally authorized to provide such services in the Commonwealth of Pennsylvania. In the event of a failure by the owner or operator to contain the emission of noxious odors, the Township shall have the authority to administer the funds provided by such security. In the event that ownership of such facility is transferred, the prior permit shall expire, and a new permit shall be required and issued contingent upon the posting of financial security in accordance with this subsection. The amount of security required for all Large Agricultural Operations that fall under the authority of this Ordinance shall be based on a "pro-ratable" formula of Ten-Thousand Dollars ($10,000) for every ten animal units.

9.3 Monitoring. All newly constructed or newly operated Large Agricultural Operations shall install monitoring devices that shall monitor the emission of noxious odors from their operations. The Odor Control Officer shall approve a variety of monitoring devices and shall approve the installation and maintenance of each device on the Large Agricultural Operation.

9..4 Inspection. In fairness to all owners and operators of Large Agricultural Operations in the Township of Monroe, all existing Large Agricultural Operations shall be required to allow an inspection of operations to be made by the Odor Control Officer. The issuance of a permit for a Large Agricultural Operation shall be deemed an authorization of the Township Odor Control Officer to inspect both sources of noxious odor emissions and installation and maintenance of monitoring devices. Owners and Operators shall be given a forty-eight (48) hour advance notice in writing, unless there is sufficient evidence that an emergency situation or violation exists. Failure to permit inspection may result in the Township obtaining a search warrant to inspect operations in the presence of a County or State officer of the law.

SECTION 10 - LEGAL EFFECT

10.1 Severability. Should any section, paragraph, or provision of this Ordinance be declared invalid by a Court of Record, such finding shall not affect the validity of the remaining provisions of this Ordinance as a whole or any part thereof, other than the part so declared invalid.

10.2 Repealer. Upon the taking effect of this Ordinance, all ordinances, parts of ordinances or resolutions conflicting with the provisions of this ordinance shall be and are hereby repealed.

10.3. Effect. The provisions of this Ordinance shall take effect immediately upon approval of this Ordinance by the Monroe Township Board of Supervisors.

10.4 Waiver of Liability. Whether through the implementation or enforcement of the provisions of this Ordinance, or through the issuance of a permit according to the provisions of this Ordinance, neither the Township of Monroe nor its agents or officers shall assume any liability for damage caused by the provisions of this Ordinance.