Arkansas plant files suit to toss odor ordinance

An odor ordinance in Russellville has created quite a stink, prompting a company that says it was targeted to file a federal lawsuit in an effort to have the ordinance thrown out.

Premium Protein Products, which owns and operates an animal byproduct rendering facility in the Pope County city, filed the suit alleging that the 36-acre plot it bought in June 2015 from Pilgrim's Pride Corp. is being unfairly targeted by an ordinance enacted the next month.

The ordinance, which prohibits nuisance odors in the city limits, uses mathematical calculations and equipment called a field olfactometer or a "Nasal Ranger" to define what constitutes an illegal "odor emission."

It authorizes violators to be sued or to be fined up to $1,000 for a single offense, double that amount for repeat offenses, and up to $500 a day if the violation is deemed "continuous in nature."

PPP, as the company is known, said the ordinance threatens the plant's commercial viability, which depends on being located near an ample supply of animal byproducts such as broiler houses and animal farms.

The company said the city lacked the authority to enact the ordinance, which the lawsuit says should be declared invalid. It noted that the state "has exercised its police powers with respect to the emission of air pollutants," and that the state's Water and Air Pollution Control Act pre-empts any political subdivision of the state from enacting or enforcing any conflicting ordinances or regulations.

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In short, the lawsuit contends, the ordinance violates the Arkansas Constitution as well as the U.S. Constitution, in that it is "arbitrary, capricious and unreasonable" and denies the company due process in violation of the 14th Amendment and Arkansas' Article 2.

"The Ordinance will have the effect of putting PPP out of business because the Ordinance makes it impossible for PPP to operate the Plant in an economically viable manner," alleges the lawsuit, filed May 23 on the company's behalf by attorneys John Keeling Baker and Bryce Crawford of the Mitchell-Williams law firm in Little Rock.

Russellville Mayor Randy Horton said Friday that although the city had yet to be formally served with the lawsuit, "we have heard it's out there."

Horton said the ordinance, which is currently being revised, was drafted to appease residents, who have complained for decades about the stench emanating from whichever rendering plant has occupied the space. He said the ordinance was drafted before Pilgrim's Pride sold the property to PPP.

"We invited PPP representatives to come help us write the ordinance, as a courtesy thing," Horton said, adding that company representatives never took city officials up on the offer.

The purpose of the ordinance, he said, is to allow "the citizens of Russellville to be able to enjoy their property -- which in some cases is even 2½ miles away from the plant."

"We work hard on economic development," said the first-term mayor.

But inevitably, he said, businesses the city tries to attract, and businesses the city hopes will expand or redevelop the area, ask the same question: "What is that smell?"

"We hear it all the time," he said. And then the city never hears anything more about the potential development, he added.

Horton acknowledged that the rendering plant on Bernice Street, which has operated under various owners since at least the 1950s, is an asset to the city too, in that it employs 34 workers with an annual payroll of about $1.4 million and, according to the lawsuit, generates about $9 million in sales annually.

But Horton said the smell is so bad that even some of the employees live in another town.

The company asserts in the lawsuit that since it purchased the plant, it has invested hundreds of thousands of dollars in mechanical upgrades to the plant and on odor-control consultants, and has "instituted a comprehensive chemical odor abatement program and monitoring regime."

Horton agreed that "they have made a major investment." And he conceded that, "yes, there are more good days now than in the last few years of Pilgrims' ownership. ... Honestly, most days now, you only smell it within a quarter of a mile from the plant. But there are still days when you can smell it from a mile away."

While better, he said, "If they really wanted to solve it, I think there are some other options available to us."

Horton noted that the ordinance also applies to the city's own sewage treatment plant.

Horton said the city had already started rewriting the ordinance before it learned that the company might sue, and that so far, the new ordinance has had two readings, with a third reading and final vote set for next month.

The mayor said he had personally extended an invitation to company officials to attend City Council meetings and help resolve the problem, but "we have had absolutely no response."

"We're still willing to listen," he said. The new ordinance "can be changed. We have not voted yet."

Before the initial ordinance was developed two years ago, Horton said, "it was clear something was going to have to be done." He said the series of rendering plants on Bernice Street, a stretch of Arkansas 7, "had worn out their welcome" and that the situation had worsened over the years under Pilgrim's Pride.

"It finally reached the point that the citizens couldn't stand it anymore," he said.

Talk about enacting the ordinance in 2015 may have caused Pilgrim's Pride to sell the property, he said, because the ordinance would have required expensive updates and the company knew "they were never going to recover from that."

One part of Ordinance 2206, "Prohibiting Nuisance Odors," requires the use of the Nasal Ranger device, which detects the release of offensive or nuisance gases, fumes and vapors into the atmosphere that are "unreasonably unpleasant, distasteful, disturbing, nauseating, or harmful to a person of ordinary sensibilities ... beyond the property boundary."

The ordinance requires any facility that emits a smell qualifying as an "Odor Emission" or generating a significant odor complaint to have "the best available control technology as to effectively abate any objectionable odor."

Horton said that after PPP received the first of its two or three citations for violating the odor ordinance, he and other city officials went to the plant so the company could show them what it planned to install to remedy the situation, and "we held the citation," to give the company time to resolve the problem.

But then a fire shut down the plant for a time, and during that time, the company "went ahead and paid" the fine, though it didn't have to, he said.

"We've done about all we can to work with them," Horton said. He said the ordinance isn't designed to "make money off them or be punitive, but to encourage them to do the best they can. ... We'll see if we can come up with an amicable solution."

John Baker, one of the attorneys for PPP, said Friday that he didn't want to comment on the lawsuit because it is active litigation, adding, "the lawsuit speaks for itself."

Metro on 05/30/2017

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